SC has set a high threshold for tolerance: Lawrence Liang

What was the impetus to fight section 66A?

Over the past few years, there have been numerous cases in which section 66A has been used in bad faith against individuals online. One of the cases that became well-known by virtue of just how ridiculous it was involved the arrest of Shaheen Dhada and her friend Renu Srinivasan (which led petitioner Shreya Singhal to file a public interest litigation in the Supreme Court that eventually led to this judgement), but there have been more, so it was inevitable that a law as draconian as section 66A would be challenged for its constitutional validity.

The judgement begins by noting a distinction between three forms of speech—discussion, advocacy and incitement—and says discussion and advocacy of a particular cause, howsoever unpopular, is at the heart of Article 19(1)(a) of the Constitution (all citizens shall have the right to freedom of speech and expression). Only when they reach the level of incitement can they be legitimately prohibited. While the judgement does not provide a new definition of incitement, it affirms what was laid down in the Rangarajan test (1989), in which the courts had established that for censorship to be justified, the “expression of thought should be intrinsically dangerous to the public interest”. There should be an immediate and direct relation between speech and effect.

The court said that section 66A is “cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net”. The courts have also historically held that Article 19(1)(a) is as much about the right to receive information as it is to disseminate, and when there is a chilling effect on speech, it also violates the right to receive information. However, I would say that the court missed an opportunity to consider the blocking of websites under section 69A.

Why did the court uphold section 69A, and which other parts of the IT Act did it examine?

If section 66A was found to be arbitrary, then the procedure for blocking websites, as laid out in section 69A, is also beset with similar problems. The court, however, upheld this section and the rules under the IT Act on the grounds that there are internal safeguards and reasonable procedures. This section allows the government to block any site or information that violates Article 19(2) of the Constitution (which enables the legislature to impose certain restrictions on free speech).

The problem is that often there is no hearing or notice given to the owner of information, there is no transparency since blocks can happen on a confidential basis and these can have serious implications for the right to receive information.

The court read down section 79, which used to provide an intermediary exemption from liability with the exception that if it received “actual knowledge” of any illegal content, it was obliged to act within 36 hours. A study by the Centre for Internet and Society showed that even on sending frivolous takedown notices, intermediaries tended to comply to be on the safe side. The court’s decision has read down section 79 now to mean that “actual knowledge” means either an order of a court or the government. It moves it away from a subjective determination by intermediaries.

The court could have, like it did with section 79, retained section 66A while clarifying a procedure that would maintain a balance between the need sometimes to block and public interest, and transparency.

What does the judgement open up for the free speech debate?

The judgement speaks of chilling effects, because if one is not careful, one runs the risk of endangering political discourse through self-censorship. This is terrible for a democratic culture, which is premised on the ability to debate and dissent. Much of the use of section 66A has been politically motivated to silence criticism, and the judgement goes a long way towards promoting a culture of critique.

As the first major Supreme Court case on free speech in the 21st century, it sets the tone on how we think of free speech in a context where every individual with a smartphone is potentially a writer, a publisher and a distributor. By setting a high threshold for what is tolerated in online speech, it ensures that the online space is not doomed to be infantilized.

What position must the law take to protect rights and minority identities?

I think it is important to distinguish between different effects of speech. The court has merely reaffirmed a position that has been held in India for a long time (such as through the Ram Manohar Lohia judgement of 1960, which interpreted what “restriction made in the interests of public order” in Article 19(2) means). In other words, if someone is inciting violence, especially if they have the power to effect such violence (such as a politician), then their speech can be regulated, but the court also held that the idea of threat to public order is often imaginary.

For instance, in what way would Shaheen Dhada’s post on Facebook have incited violence? (In November 2012, Dhada, then a student and based in Palghar, Maharashtra, had written a post on Facebook commenting on the state of shutdown that followed politician Bal Thackeray’s death. Her comment was liked by her friend Srinivasan, and both of them were charged under section 66A.) So, the court is distinguishing between speech that is critical and speech that is dangerous. There are laws that deal with the latter, such as 153A and 295A of the IPC (Indian Penal Code).

It must be noted, however, that provisions also suffer from the same vice of vagueness. What we need is a more nuanced understanding of hate speech that addresses speech that incites violence or hatred against a community, but one in which the test is not of subjective hurt sentiment. The problem with hate speech laws is that they collapse questions of law and order with questions of subjective hurt, and we run the risk of becoming a republic of hurt sentiments where anyone can claim that their sentiments are hurt, especially their religious sentiments.

What happens to existing cases that are being tried under section 66A, such as the one against the organizers and participants of the All India Bakchod Roast?

Court judgements do not necessarily have retrospective effect, so cases that have been filed will continue. We must also remember that the cases filed under section 66A were also accompanied by other provisions. Of course, a judgement as significant as this, which completely delegitimizes section 66A, will have a profound impact on the ongoing cases insofar as they relate to the offence under the section, but the other charges remain.