#dnaEdit: Dissent reinstated

The landmark Supreme Court judgment declaring Section 66A of the Information Technology Act as unconstitutional is a resounding victory for citizens against a bullying State. In the guise of policing the Internet for cyber crime, what Section 66A did was give the State a handle to criminalise dissent. The string of cases of misuse of Section 66A has had a chilling effect on free speech, even though cyber hate speech and harassment have only increased. The SC has slammed 66A’s prescription of three years imprisonment for grossly offensive, menacing, or false communication that causes “annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill-will” on several counts. The judges noted that 66A did not assess the impact of the offending communication on public order or whether  it posed any clear and imminent danger. Further, the vagueness of its clauses left citizens unsure of what would run foul of the law. The arrests of a Jadavpur University professor for emailing cartoons lampooning Mamata Banerjee and of the two young women who opposed the shutdown of Mumbai over Bal Thackeray’s death turned public opinion against 66A. But successive central governments have stubbornly defended its continuance in the statute and promised safeguards against arrest.

However, last week’s arrest of a teenager in UP for allegedly defaming Cabinet minister Azam Khan showed that state governments were not going to bind themselves to the Centre’s commitments. There has emerged — no doubt — a general pattern of leveraging 66A as a political instrument of coercion and intimidation. Every case involved a complainant, not necessarily the target of the offending social media action, but often a political supporter of the intended target, who would register an FIR and the police would promptly execute arrests to curry favour with the political establishment. In the physical world, what would easily be slotted as criminal or civil defamation cases — entirely court-mediated with no leeway for police action — have assumed a draconian character on the Internet. If an individual takes offence to another’s view, it is not for the government and its police wing to take sides or play arbiter. When ordinary law-abiding citizens undergo the ordeal of arrests, custodial interrogation and court appearances, the lines between bona fide free speech, dissent, libel, hate speech, and incitement to violence are decidedly blurred. 

Justice Rohinton Nariman cited three concepts — discussion, advocacy, and incitement — as fundamental to understanding the right to freedom of speech and expression (Article 19(1)(a)) and the reasonable restrictions to free speech(Article 19(2)). “Mere discussion or even advocacy of a particular cause howsoever 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.” A more precise and clear appraisal of what constitutes free and hate speech could not have been made. The bench also offered a reasoned interpretation on Section 69A that allows the government to act as a censor, by blocking websites, and Section 79 that allows individuals also to act as censors. On the former, the court contended that there were enough safeguards to avert extra-constitutional action. Section 79 required intermediaries like social media websites and Internet service providers, to acknowledge “objectionable” content within 36 hours and remove the content from servers within a month when take-down notices were served on them by affected persons. There were no legal or quasi-legal authority to appeal to. Henceforth, take-down notices will require a court or government order. There are still other looming battlegrounds on the Internet. Edward Snowden’s revelations of massive State surveillance by the US National Security Agency and the creation of similar apparatus by the Indian State also pose grave dangers for dissent, just as 66A did. The fight is not over.