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MASSIVE VICTORY FOR FREE SPEECH ONLINE: Indian Supreme Court strikes down a provision in the Indian cyber law which provides power to arrest a person for posting allegedly "offensive" content on websites!

26/3/2015

3 Comments

 

In a landmark judgment, the Indian Supreme Court decided upon a constitutional challenge to three provisions of the Information Technology Act: Sections 66A, 69A and 79. All these provisions had attained a unique degree of notoriety in recent times, for their effect on suppressing online freedom of speech and expression. Section 66A criminalized online communication that is "grossly offensive", has a "menacing character", or causes "inconvenience or annoyance". Section 69A authorised the Indian government to block websites, and through a set of rules, lay out the procedure for doing so. And Section 79 dealt with the situations where online "intermediaries" (ie, search engines, social media platforms etc.) must "take down" illegal speech that internet users might have posted, and were being hosted by their platforms. The Indian Supreme Court held that Section 66A violated the constitutional right to freedom of speech and expression, and was therefore void. It upheld Section 69A and the blocking rules. And it upheld Section 79, but limited its scope by "reading it down". Each of these decisions will have widespread effects, not merely upon online speech, but upon censorship and the freedom of speech and expression across Indian media.

PictureNEW HEROES: JusticeS Nariman and Chelameswar
The Supreme Court judgement borrowed a a page from Shakespeare's immortal classic Julius Caesar to make the point that "freedom of speech and expression" were concepts that must be clearly understood and respected. There are three steps in this process, the judgement said. The first is discussion, the second is advocacy and the third is incitement. It is only when the third incites or engenders violence that attract Article 19 (2) of the Constitution could kick in as a state of mutiny may not be far behind. "A good example of the difference between advocacy and incitement is Mark Antony’s speech in Shakespeare’s immortal classic Julius Caesar. Mark Antony begins cautiously," the court said. 

Brutus is chastised for calling Julius Caesar ambitious and is repeatedly said to be an “honourable man”. He then shows the crowd Caesar’s mantle and describes who struck Caesar where. It is at this point, after the interjection of two citizens from the crowd, that Antony says:

“Good friends, sweet friends, let me not stir you up
To such a sudden flood of mutiny.
They that have done this deed are honourable:
What private griefs they have, alas, I know not,
That made them do it: they are wise and honourable,
And will, no doubt, with reasons answer you.
I come not, friends, to steal away your hearts:
I am no orator, as Brutus is;
But, as you know me all, a plain blunt man,
That love my friend; and that they know full well
That gave me public leave to speak of him:
For I have neither wit, nor words, nor worth,
Action, nor utterance, nor the power of speech,
To stir men's blood: I only speak right on;
I tell you that which you yourselves do know;
Show you sweet Caesar's wounds, poor poor dumb mouths,
And bid them speak for me: but were I Brutus,
And Brutus Antony, there were an Antony
Would ruffle up your spirits and put a tongue
In every wound of Caesar that should move 


Quoting Shakespeare the judgement says, "It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, etc. Why it is important to have these three concepts in mind is because most of the arguments of both petitioners and respondents tended to veer around the expression “public order”.

In fact, two English judgments (Director of Public Prosecutions v. Collins, (2006) 1 WLR 2223; Chambers v. Director of Public Prosecutions, [2013] 1 W.L.R. 1833, the Queen’s Bench),cited by the learned Additional Solicitor General would demonstrate how vague the words used in Section 66A are. If judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as “grossly offensive” or “menacing” are so vague that there is no manageable standard by which a person can be said to have committed an offence or not to have committed an offence. Quite obviously, a prospective offender of Section 66A and the authorities who are to enforce Section 66A have absolutely no manageable standard by which to book a person for an offence under Section 66A. This being the case, having regard also to the two English precedents cited by the learned Additional Solicitor General, it is clear that Section 66A is unconstitutionally vague.

"Our government led by Prime Minister Narendra Modi took a very conscious decision that we don't support the stand of the previous government. We respect the freedom of speech and expression. We respect communication of ideas on social media and we are not in favour of curtailing communication of honest dissent, opinion, disapproval or criticism on social media," Union IT Minister Ravi Shankar Prasad said. 

Picture
Indian Supreme Court strikes down Facebook defamation arrest laws
3 Comments
rajend naidu
26/3/2015 05:34:07 pm

The Indian Supreme Court judgement regarding the preeminence of freedom of speech online in a democracy is as should be. This is what makes Indian democracy qualitatively different from communist China. Advocates of democracy and free speech can take heart from this enlightened Indian court judgement. Talking of enlightenment, we learn from the documentary Heroes of the Enlightenment ( SBS 26/03) that one of the principal characters of this one of the most significant and revolutionary periods of human history Voltaire found in England the greatest of all freedoms - the freedom of speech . He made this freedom the most passionate of his life's work - writing over 20,000 letters on it!. It is because of the work - the enlighten thinking - of radical Thinkers like Voltaire that we today live in the world we live. We must guard against any attempt to erode the freedoms and in particular the freedom of speech that we have . I applaud the Indian court decision for doing that.

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Yep
26/3/2015 07:27:54 pm

The rights and freedoms, including that of free speech, have been bestowed on us by the intellectual giants of humanity often through great personal sacrifice. We must not allow intellectual Lilliputians like Khaiyum, Bainimarama and their lapdog the MIDA man Ashwin Raj to take them away .

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Shannon
26/3/2015 08:30:17 pm

While this is indeed great news, unfortunately the ruling will never hold up in other democracies such as the US, UK and etc. simply because reasons such as terrorism can always be used as grounds to identify people online. It is truly a fine line to know when to let people remain anonymous or when, for the greater good, to bring them into the light.

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