The arrest of Shaheen Dadha, who posted an innocuous comment on her Facebook page, and her friend, Renu Srinivasan, who ‘liked’ her comment, has again brought to the fore the debate about the freedom of speech and attempts to curb it. By all accounts, the arrest was unjustified, disproportionate to the alleged violation of law, and a perfect example of the arbitrary exercise of executive power. Legitimate questions are being asked whether the haste with which the Maharashtra police acted was on account of political pressure. One wonders whether any case at all had been made out for the authority to grant the judicial remand of these twenty something’s. Thank god, these girls were granted immediate bail. Now if only the charges against them are dropped with equal immediacy!
Despite any of the above, to say that Section 66A of the Information Technology Act, under which these girls were charged, is a “perverse provision of law” and hence should be abolished both undermines the law making process and wrongly assumes that the law was promulgated only with the intention to check free speech online. As a defender of the rule of law, I submit that just because an administrative authority acts in an arbitrary manner is not sufficient argument to strike down the statute, especially since the arbitrary action will itself be struck down by the courts.
Introduced in 2008, the intention behind Section 66A was clearly to check the growing menace of irresponsible electronic messages/communications. This Section punishes with imprisonment and a fine, any person who sends information that is grossly offensive, has a menacing character or which causes annoyance, inconvenience, insults, or promotes hatred or ill-will. Admittedly, the inclusion of annoyance and inconvenience can lead one to believe that the Section is broadly worded. But benefit of the doubt needs to be given to the draftsmen who recognised the rapid pace of technological development and their inability to comprehensively cover all offences, and hence judiciously enacted a broad provision. An English jurist said “the words, as well as the acts, which tend to endanger society differ from time-to-time. After all, the question whether a given opinion is a danger to society is a question of the times and is a question of fact.”
Critics argue this Section as being beyond the scope of reasonable restrictions on the exercise of free speech, provided under Article 19(2). Another criticism is that it criminalises conduct, in excess of what constitutes an offence under the Indian Penal Code. It’s argued that, a verbal insult or annoyance is not an offence, then why should the same thing, if done using an electronic medium, be deemed a crime?
While this criticism may have some merit, very simplistically, the anonymity of the online world necessitates that electronic communication which insults or is intended to cause persistent annoyance or spread falsehood must be treated as a crime.
As for whether Section 66A restricts free speech enshrined in our Constitution, the answer is slightly longer. The Supreme Court has held that a drastic restriction on the right of a citizen, when imposed by statute, call for a strict construction, especially when quasi-penal consequences ensue. But, it also observes that the framers of our Constitution wrote down reasonable restrictions on libertarian exercise of freedoms and notes Dr. Ambedkar’s arguments before the constituent assembly that it would be incorrect to assume that fundamental rights are absolute. Freedom of speech does not confer an absolute right to speak without responsibility.
Shaheen Dadha’s comment when compared to what else one reads online is rather benign. If at all the subject of her post, a revered local leader, may be perceived as being ill-timed, especially since the law stipulates that the character of every act depends on the circumstances in which it is done. But even that does not make out the offence for which she has been charged. Her case is easily contrasted from that of the tweeter charged in Karti Chidambaram’s complaint, under the same section. There, Mr. Srinivasan, a self-confessed India Against Corruption supporter, opposed to the ruling government, made personal allegations against Chidambaram and persistently published grossly offensive information intended to spread ill-will and hatred about him. Should there be no law that regulates such action?
Confronted with these current day challenges, the Supreme Court recently re-examined the delicate balance between the freedom and restrictions and noted that freedom of speech is essential for the proper functioning of the democratic process. It held freedom of speech and expression as the first condition of liberty and one which occupies a preferred position in the hierarchy of liberties. Liberty of thought enables liberty of expression. But the Court notes that rights are not absolute and the existence of every right is coupled with a corresponding duty.
One has the right to express and dissent, but does that include the right to insult, offend and disparage? Just because the viral world offers no physical contact, does that mean it requires no checks on what one can say or does?
A hallmark of progressive nations is their ability to debate and discuss contentious issues and find solutions to them. One therefore hopes that some of these questions will get answered in due course. Till then, the recent advertisement “behave yourself India, the youth is watching” can well be turned on its head.
Satvik Varma is an advocate based in New Delhi & an Aspen India Leadership Fellow.
First Published in The Economic Times.