By Dilip Bobb
One of the late Nelson Mandela’s most famous quotes after being released from prison was: “To be free is not merely to cast off one’s chains, but to live in a way that respects and enhances the freedom of others.” The Supreme Court seems to agree with that noble sentiment.
In a ruling last week regarding social media posts by a Kolkata resident, a bench of Justices BV Nagarathna and V Viswanathan argued that citizens must know the “value of freedom of speech and expression” and exercise “self-restraint” on social media, failing which there may be a need to consider framing of guidelines to “control divisive tendencies” on virtual platforms. The bench was quick to confirm that it was not advocating for censorship, but there was a need to look beyond the petition in the interests of “fraternity, secularism and dignity of individuals”.
The case that caused such a singular warning about the boundaries of social media and free speech involved a plea filed by Wazahat Khan seeking the Court’s relief against several cases filed against him in different states, almost all by BJP/RSS members. In an ironic twist, it was based on Khan’s complaint that the Kolkata police arrested a law student Sharmishta Panoli from Haryana last May over her social media posts. She was granted bail. Following Khan’s posts which were seen as anti-Hindu, FIRs were filed against him in Assam, Maharashtra, Delhi and Haryana. He later deleted his posts and apologized, but the case has once again reignited the debate between free speech and what the Supreme Court bench called “a valuable freedom” balanced against self-regulation.
The bench made the important distinction between self-restraint on social media and state intervention. “If they don’t (stop posting what the bench called “abuse’) then the state will step in and who wants the state to step in. Nobody wants the state to step in,” asserted Justice Nagarathna, adding: “Article 19 is against the state, verticality. What about horizontality?”
The senior advocate appearing for West Bengal responded by saying that he agreed with the Court’s observations and recommendations, but the problem was that social media has no editorial oversight. That is the issue that has been haunting individuals, social media platforms and governments all over the world for some years now.
A recent article in the International Journal of Law and Social Sciences says: “In the digital age, India’s narrative of free speech has encountered both evolution and turbulence. Rooted in the democratic ethos, Article 19 of the Indian Constitution safeguards this freedom, reflecting the country’s commitment to upholding a citizen’s right to express. With the proliferation of online platforms—ranging from social media to news portals—the citizens have found dynamic avenues to articulate their viewpoints. However, this freedom has its pitfalls in the digital realm: The rapid dissemination of misinformation and the perils of divisive rhetoric. As the world envisages the future of India’s digital discourse, it becomes paramount to ensure that the sanctity of free speech, as championed by Article 19, is preserved, yet responsibly exercised.”
The other case that has a connection with the Khan hearing is the one filed against Indore-based cartoonist, Hemant Malviya, who faced an FIR over an objectionable cartoon on Prime Minister Narendra Modi and the RSS. He too deleted his Facebook posts after the Supreme Court slammed him, saying his conduct was inflammatory. A bench of Justices Sandeep Mehta and Sudhanshu Dhulia came down heavily on Malviya while hearing his plea challenging the denial of anticipatory bail. The Court termed his conduct inflammatory and immature. “Still no maturity in him. It is indeed inflammatory,” remarked Justice Dhulia, expressing displeasure over the nature of Malviya’s posts.
Appearing for Malviya, senior advocate Vrinda Grover argued that the post in question had already been deleted.” The post did not amount to an offence and it is about personal liberty,” she submitted, urging the Court to protect him from arrest. The bench, however, declined to grant interim relief.
Earlier, the Madhya Pradesh High Court had dismissed Malviya’s anticipatory bail plea, holding that his caricatures fell outside the ambit of freedom of expression. Malviya, who identifies online as an artist, cartoonist, and wedding decorator, frequently uses satire to critique political and social issues. His Facebook profile features a range of posts critical of the establishment.
The case was filed against him by RSS member and lawyer Vinay Joshi, who alleged that Malviya deliberately shared “offensive,” “indecent,” and “obscene” content targeting Hindu religious sentiments. Malviya was booked under several provisions of the Bharatiya Nyaya Sanhita, including Section 196 (acts detrimental to communal harmony), Section 299 (deliberate act intended to hurt religious sentiments) and Section 352 (intentional insult to provoke breach of peace), in addition to Section 67A of the Information Technology Act, which deals with transmission of sexually explicit material online.
Social media is not under official censorship as is the case with films. The legal provision comes under the Information Technology (IT) Act (Section 66A) which states: “Any person who sends, by means of a computer resource or a communication device (a) any information that is grossly offensive or has menacing character; or (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device, (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.”
The Act is deeply flawed in that it contains some subjective terms which can be interpreted in various ways. A phrase such as “causing annoyance” could mean anything from playing loud music to sanitation issues, food habits, unruly pets, or even attire.
Examples of how it can be misused and misinterpreted abound. In April, 2012, a professor of chemistry at Jadavpur University was arrested for posting a cartoon on West Bengal Chief Minister Mamata Banerjee. In May the same year, two Air India employees were arrested by the Mumbai police for posting content on Facebook that was critical of a trade union leader and some politicians. They spent 12 days behind bars. A few months later, Shaheen Dhada, 21, was put under house arrest when, a day after the death of Shiv Sena supremo Bal Thackeray, she posted on social media: “Every day, thousands of people die. But still the world moves on… Just due to one politician dead. A natural death. Everyone goes crazy… Respect is earned not given out, definitely not forced. Today Mumbai shuts down due to fear not due to respect.” The post didn’t even mention Thackeray by name, but she was ordered to go to the police station and apologise. Alongside Shaheen was Renu Srinivasan, a college mate, who “liked”, shared and commented on Shaheen’s status update. She too was summoned by the local police station.
In the face if such cases, a public interest litigation was filed in the Supreme Court challenging Section 66A. The submission argued that the phraseology used was so wide and vague and incapable of being judged on objective standards. Admitting the petition, then chief Justice, the late Altamas Kabir and Justice J Chelameswar noted that the wording of Section 66A was not satisfactory. It was, they concluded, very wide and could apply to all kinds of comments. The PIL argued that the Section, which penalized sending offensive messages through communication devices, was vague, overbroad, and violated the fundamental right to freedom of speech and expression.
The Supreme Court, in a landmark judgment, ultimately struck down Section 66A in its entirety in the case of Shreya Singhal vs Union of India in 2016, deeming it unconstitutional, violating the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution. The judgment set a crucial precedent for safeguarding free speech in the digital age. Singhal is a lawyer and an activist, and her petition and its outcome, turned her into an instant celebrity.
How then do other countries deal with such issues in an age that is so dominantly digital? The diverse approach taken by the US, the European Union, the UK and Australia reflects the unique challenges every region faces.
A study by the Stanford Law School pointed out that social media played an important role in the Arab Spring, the London riots, and the Occupy Wall Street movements, “but while the web links us all, each country nevertheless retains its own legal framework, and may or may not view a particular speech, such a blasphemy or lèse majesté, as legal. Deciding whether a particular speech is worthy of protection, or not, is a slippery slope. Indeed, not every value is universally recognized, with the possible exceptions of safety and privacy. Censorship of social media speech may not outweigh the benefit of forbidding a particular speech, but allowing complete free speech on social media may also have negative impacts, such as fostering cyber bullying or hate speech.”
The study added that different laws regulating social media speech need to be respected, but every country needs to carefully balance the difference between free speech and the negative aspects of social media. Additionally, social media companies operate globally, raising complex jurisdictional issues and the need for international cooperation.
Ultimately, what is desirable, indeed necessary, is some form of regulation of social media, and definitely not its censorship. What we have seen in India is that the government does have unaccountable power in terms of using the all-embracing phrase “security” to crack down on social media that it finds critical or objectionable.
Heads of social media platforms have regularly been summoned by the government and asked to remove posts it deems a “threat to internal security”. Within hours of Operation Sindoor, the centre convened meetings with top executives from social media platforms and apps and “red-flagged” fake news and propaganda being peddled by foreign entities, which it termed “offensive content”. When it comes to individuals using social media it’s a different challenge since most are subjective and open to various interpretations. The problems generally arise when they relate to communal or political issues. As the popular phrase goes: “One man’s meat is another man’s poison.”
—The writer is former Senior Managing Editor, India Legal magazine