Restrictions on free speech have done terrific damage to India’s liberal reputation in recent years. From cartoonists being gagged to books of all covers going underground, India’s politicians speak in chorus in wanting its people to say nothing at all. The Congress enacted Section 66A of the IT Act with rare fervour. The BJP inherited and deployed it with equal panache. Given this political consensus, the Supreme Court’s decision in Shreya Singhal to declare Section 66A unconstitutional marks a powerful moment in its institutional history. For a body struggling to recraft itself, battling doctrinal incoherence and a decidedly mixed record on civil liberties, the decision couldn’t have come at a finer time.
Section 66A punishes “offensive messages” that are sent “by means of a computer resource or a communication device”. If you are wondering what the former means, you are not alone. What you should know is that it includes information “for the purpose of causing annoyance”. While the Indian Constitution allows for exceptions to free speech, elaborately listed in Article 19(2), such exceptions aren’t a get-out-of-jail-free card. They must, as the court emphasised, be subject to justification. This test failed miserably in the case of 66A. Under the provision, the offence was “complete by sending a message for the purpose of causing annoyance … without in any manner impacting public order”. Similarly, the provision couldn’t withstand the decency or morality exemption. Words, after all, can annoy without being indecent or immoral. The state’s defence of 66A offered no causal story, no correspondence between acts and alleged outcomes that was convincing. The provision performed as badly when confronted with the question of vagueness. Written in words bearing little resemblance to their ostensible ends, the court found that “the expressions used in 66A are completely open-ended and undefined”.
Aside from underscoring the terms needed to satisfy free speech exceptions, an interesting feature of the decision will be its impact on future internet regulation. Though matters of expression typically focus on content, free speech law is about both material and medium. On the former, the SC’s score is far from admirable. But on the latter, as the celebrated newsprint regulation cases remind us, the record is more respectable. Here, the animating principle has been that the right to free speech calls for conditions that can make its exercise possible. This principle raises the inevitable question of how mediums of communication can be regulated. When does regulation, even if indifferent towards content, violate free speech by incapacitating the environment that enables its performance? In Shreya Singhal, the court upheld the state’s claim that the internet could be regulated differently from other mediums of communication. It found that the “intelligible differentia is clear — the internet gives any individual a platform, which requires very little or no payment, through which to air his views”. There is some rationale for treating different mediums differently, but the court said little more on this issue. In the days ahead, structuring the precise legal relationship between different mediums and the value of free speech will be one of its defining challenges.
While the judgment is a work of careful legal reasoning, it contains an implicit recognition of two crucial lessons offered by modern Indian politics. First, that codification, the giving of an elaborate written form to laws, is not a neutral exercise. To adapt a phrase from John Austin, Indian political leaders have long argued that the validity of a law is one thing, its use and abuse quite another. The idea that laws merely explicate a framework rather than necessitate repressive use is elegant in theory and not necessarily disingenuous. It was, in a way, the grand impetus behind 19th century English legal reform. But we can now see that this claim is poorly matched by sociological reality. Because laws operate within institutional structures, their textual form is bound to give certain actors more presumptive power than others. Provisions like 66A don’t simply outline the terms under which the state can act. They also naturally give it the power to judge when those terms apply. The very power to act often creates its own legitimacy. The right to do something becomes the right thing to do.
The second, more sobering lesson is that legal constructs are almost invariably self-fulfilling prophecies. We encounter this most acutely in matters like the legal recognition of caste, which recreates rather than merely recognising such identities, but it would be a mistake to miss the catholic prevalence of this phenomenon. When the state suggests that certain acts of speech will engender violence, that particular words will generate alarm, the laws it enacts will create citizens made in this image. Human nature is a remarkably contingent affair. We will take the shape of the promise bestowed upon us. For many of us, this is a source of hope. It is the Hobbesian dream offered by political life, that it carries within it the power to transform us entirely. But for elites, this is the ultimate nightmare, for the greater the transformation, the higher the prospect of their displacement. India’s politicians are hardly unaware of the radical pliability of human passions. Indeed, it is precisely their fear of this fact that motivates the enactment of provisions like Section 66A.
Khosla, a lawyer and political theorist at Harvard University, is author of ‘The Indian Constitution’.