In an elegant and comprehensive judgment that is widely held as historic, Supreme Court Justices J. Chelameswar and Rohinton F. Nariman constitutionally invalidated Section 66A of the Information Technology Act, introduced by a 2009 amendment. They agreed that everyone was vulnerable to “new forms of crimes like publishing sexually explicit materials in electronic form, video voyeurism and breach of confidentiality and leakage of data by intermediary, e-commerce frauds like personation commonly known as phishing, identity theft and offensive messages through communication services”. But they ruled that the state could not criminalise such conduct, as the amendment had, making it punishable with up to three years in prison and a fine.
What’s more, the court was, in effect, saying “haste makes waste” — 66A, probably smuggled in by an overzealous IT security technocrat, was not discussed by the standing committee or by Parliament. Its constitutional overreach lay in poor drafting and was aggravated by the single-minded pursuit of security over liberty.
The court maintained that discussion or advocacy of a particular cause, however unpopular, is at the heart of Article 19(1)(a). “It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in”, the judgment reads, and even here the state may impose reasonable restrictions only on grounds stipulated in the article. Not only do the grounds have to be reasonable, but they must also not be vague or too broad. The court insisted it could never be “overemphasised” that “liberty of thought and expression is a cardinal value… of paramount significance under our constitutional scheme”.
Recognising the differences between American and Indian constitutional interpretations, and holding that the interpretation of the US’s First Amendment was relevant for Indian courts as a “persuasive” precedent, the court repeated the famous observation made by Justice Brandeis, that the founding fathers had “believed liberty to be the secret of happiness, and courage to be the secret of liberty”. They also believed “freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government”.
Further, the founding fathers “knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies”. They believed “in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form”. These words also extend to the founders of the Indian democratic republic and the Supreme Court has, once again, showed its determination to uphold the claims of free speech over the demands of a legislative supermajority.
Equally crucial is the emphasis on the right of people to know. Section 66A violated this right by “creating an offence against persons who use the internet and annoy or cause inconvenience”. It failed to draw a distinction “between mere discussion or advocacy of a particular point of view which may be annoying or inconvenient or grossly offensive to some and incitement by which such words lead to an imminent causal connection with public disorder, security of state etc”. Mere discussion, public disagreement or even advocacy cannot adversely affect individual freedom of speech or people’s collective right to know. Only public incitement to act may violate the rights of co-citizens and infringe on constitutionally conceived public order. There is thus a right to be offensive through satire, irony, lampooning and even insult, but none to commit an offence or incite anyone to do so.
Although this case engaged with freedom on the internet, these resounding words apply to all other media. The court explicitly relies on and reinforces earlier decisions which extended freedom of speech and expression to the freedom of the press. Public discussion and dissent through any medium is protected by the Constitution and may not be curbed by vague and unreasonable laws. And while Parliament may make laws, it is for the courts to decide whether these are constitutional. Such laws (to quote Brandeis again) should not “enforce silence” or enact “the argument of force in its worst form”.
The court dismissed the contention of the learned additional solicitor general that the internet had to be distinguished from the press and that it attracted different, higher standards of scrutiny. Affirming a 1995 decision, it ruled that the “print media further enjoys… freedom from pre-censorship unlike the electronic media”, even if the Press Council of India is “empowered to enforce, however imperfectly, the right to reply”. There was no fundamental difference between the internet and other media to justify unreasonable limitations on the basic human right to freedom of speech and expression, the court concluded. Short of intention to incite an offence, the freedom of speech much reign. And the offence itself should not affect free speech and people’s right to know.
The court reiterated that “a restriction in order to be reasonable must be narrowly tailored or narrowly interpreted so as to abridge or restrict only what is absolutely necessary”. The law must respect the “eight subject matters” enumerated in Article 19(2). No law merely stressing “a compelling necessity to achieve an important governmental or societal goal” may abridge freedom of speech: it will not “pass muster”. A law not covered by Article 19(2) is simply “outside the pale”, and the court explicitly declares it will be struck down. No legislation seeking to impose a “total chilling effect” on free speech is constitutionally permissible.
The Constitution assures freedoms subject to reasonable regulation, not an absolute right to the freedoms. Parliament may, however, regulate speech only on the eight grounds in Article 19(2). Section 69B, through which internet content may be blocked on grounds specifically stated under Article 19(2), is held valid. But the presumption that a statute is constitutional does not obstruct constitutionally sincere judicial review.
Let us not forget that the petition was triggered by a young law student, Shreya Singhal, in solidarity with a number of young persons who were charged with or detained under 66A. The youth and social media are favoured by the prime minister. He should know better than to rewrite the law at a time when coercive moral policing groups, in the words of another law student, Pallavi Sharma, grow like “mushrooms in monsoons — circumstantial and abundant”.
The writer is professor of law, University of Warwick,and former vice chancellor of the Universities of South Gujarat and Delhi