This article on ‘Freedom of speech in the virtual world and the Indian Constitution‘ is written by Sukriti Chowdhury, an intern at Legal Upanishad.
People in India are granted plenty of fundamental rights that defend their lives, freedom, and privacy. The users of social networking sites are not virtual by any realm of imagination, and certain individual liberties must be given to them to defend their digital democracy. Not only from a pragmatic perspective, but also a legal perspective, the situation of freedom of speech on social media is a hot discussion issue these days, and people frequently refuse to differentiate between free speech and restriction and direction of the free speech published on the Internet, indicating that it is quite necessary to re-evaluate the impact of reasonable restrictions on the right to expression in the virtual world.
WHAT IS FREE SPEECH?
The right to freedom of speech is a fundamental right granted to all Indian citizens under Article 19(1)(a) of the Constitution of India. However, no absolute right is granted under this article. Rather, it provides reasonable restrictions that could be subjugated on this right.
Numerous laws limiting freedom of speech, for example, those laws prohibiting sedition, hate speech, or defamation, derive their basis from Article 19(2) of the Constitution. This article also guides the examination of films, publications, paintings, etc. Scholars point out that in India, censorship was historically anchored in the discourse of defending Indian values from foreign influences and establishing and maintaining robust unification after freedom.
IT RULES, 2021
The presently issued Information Technology Rules, 2021 have sparked a national uproar and a lot of debate, with the maximum of the population believing that these rules are unconstitutional for several concerns, the most appropriate being that they violate the right to freedom of speech. OTT (over-the-top) applications have been taken under the jurisdiction of the government, which exhibits films and audio-video programs released by virtual content creators, along with platforms that broadcast news and current affairs content.
In its press release, the government vividly expressed that such rules would in no way be detrimental to the fundamental right under Article 19(1)(a) of citizens as such restrictions are needed to protect the essence of democracy to avoid arbitral usage of freedom.
However, the government tries to justify this step by claiming that these rules were necessary because there had been a rise in complaints about content publicized on such mediums that hurt people’s feelings and offended them, including such scenes having violent behaviour, nudity, indecency, an immoral portrayal of women, and physical abuse of children related content. Furthermore, there was explicit satirical commentary or audio or visual- a display that offended people’s religious sentiments. There was no adequate grievance redressal process in place previous to these guidelines to effectively address the public’s complaints.
REASONABLE RESTRICTIONS: FAIR OR UNFAIR
The case of Shreya Singhal v. Union of India dealt specifically with the issue of the virtual era’s freedom of speech and expression. Section 66A of the Information Technology Act was declared unlawful and unconstitutional in this judgment. According to this section of the IT Act-“Any individual who transmits with the help of a computer system or transmitting medium such data that is defamatory, or by the understanding of its falsehood, the data is conveyed for the intent of leading to anger, aggravation, threat, insult, harm, animosity, or ill will.”
The right to access the Internet is a privilege acknowledged by judicial decree and a Supreme Court (SC) decision in the case of Anuradha Bhasin vs Union of India. The main issue was whether the government’s internet blockade and movement limitations in Kashmir were legal, whether the right related to Article 19(1)(a) of the Constitution expanded to the virtual world too, and whether banning the internet connections was legal given the restrictions under Article 19(2).
The basis of the rationality of the decision in the preceding issue was such that everyone has the right to freedom of speech and expression, and the degree to which limitations on it can be applied, even to the point of an outright ban. The Court adopted the proportionality test to help the government evaluate the restrictions before implementing any.
The Supreme Court upheld this right, continuing a long history of considering the medium of exercising speech as integral to the right to free speech. For example, in the Indian Express case, the freedom of the print media was recognized.
Therefore, the digital media era, like any other scenario, can be interpreted in two broad frames: as a boon or as a bane. Like the recent instance of the government banning a few Chinese apps, some see the Government’s proposed ban as a good development, while others see it as a violation of Article 19(1)(a) of the Constitution of India because the ban consisted several social media and gaming applications like PUB-G with a large customer base in our country.
Freedom of speech and expression must be granted a wider scope, but it must also be subject to inherent constraints that are legitimate within constitutional limits. We reaffirm that the aforementioned right is one of great significance that stands the test of time and culture and must pave the way for ascension, but it cannot be placed in a chamber of absoluteness. It is subject to a constitutional constraint.
Thus, for justice to prevail guidelines such as the burden of proof on the authorities to prove a breach of Section 66A has been committed, not arrest in an instance but an ultimatum, persistent encumbrance of the notice dated January 9, 2013, etc., for executives to follow to properly enforce the section could have been made.
It was recommended that such an arrest should be done in the case of a previous acceptance from an administrative official who is not under the position of Inspector General of Police in big cities, or of an officer not below the rank of Deputy Commissioner of Police or Superintendent of Police at the municipal level. Nevertheless, in pursuance to prevent any judicial review or scrutiny, the court could also have asked the Law Commission to provide suggestions to deal with the lacunas left behind by the elimination of Section 66A, IT Act.
Considering everything, it is therefore suggested that a Committee shall be organized, comprising of tech- professionals to detect and report the matters of arbitral use of social media and present a rational regulatory plan that does not harm people’s civil rights.
A civilized country isn’t one in which individuals have the complete right to express themselves, but instead, one in which one’s right to freedom is well regulated following others’ rights. The peaceful exercise of one’s right and the infringement of someone else’s right in the Constitution are distinguished by a very narrow line.
On social media, exercising one’s right to free speech and expression can lead to an invasion of privacy and defamation. Again, what constitutes offensive content differs from person to person. A cartoon is an innocuous method to have fun, however, the person who is targeted may take offence. Hate speech, racist statements, and religious feelings, on the other hand, have diverse connotations for different people.
As a result, Section 66A was adopted by democratically elected representatives to foster an environment where diverse rights may thrive. As a result, because the courts have the responsibility to provide an interpretation that fills the void rather than creating one, Section 66A shall be given a comprehensive understanding within the context of Art. 19(2).
- Anuradha Bhasin v. Union of India, (2019) SCC Online SC 1725.
- Article 19: Mapping the Free Speech Debate in India. (n.d.). Retrieved from ENGAGE EPW: https://www.epw.in/engage/debate-kits/article-19-mapping-free-speech-debate-india
- Chakraborty, N. (June 2021). HUMAN RIGHTS AND DIGITAL MEDIA: A STUDY ON THE STATUS OF FREE SPEECH IN VIRTUAL WORLD WITH RESPECT TO US, UK & INDIAN OUTLOOK.
- Fernandez, N. L. (n.d.). Freedom of speech and expression in the digital era. Retrieved from BLOG IPLEADERS: https://blog.ipleaders.in/freedom-speech-expression-digital-era/
- Indian Express v Union of India , (1985) 1 SCC 641.
- Jasjit Pranjal, A. A. (n.d.). “An Analysis of Constitutional Validity of Section 66A, I.T. Act, 2000”. PEN ACCLAIMS, 15. Retrieved from http://www.penacclaims.com/wp-content/uploads/2021/04/Jasjit-Pranjal-and-Ankit-Anand.pdf
- Shishir Tiwari, G. G. (n.d.). Social Media and Freedom of Speech and Expression: Challenges before the Indian Law. Retrieved from https://deliverypdf.ssrn.com/delivery.php?ID=780025027093084065015097081108122031007048068055025069102114082123090068028115007024007063049014102035101118115080095019026071000033062052083121067120064007093070090005062075025077120072104095094079114112026116
- Shreya Singhal v. Union of India, (2013) 12 SCC 73.