https://odishapostepaper.com/edition/5073/orissapost/page/6
Internet freedom and courts are in the news once again. The Government of India had suggested an amendment to the Information Technology (IT) Act 2000. Under the amendment to the Act, the Government of India proposed to establish Fact Checking Units (FCU) to identify fake news about its activities, and it mandated that intermediaries pull down content identified as “misinformation” by the FCU, or else face judicial proceedings. The proposed amendment reveals the continuous efforts of the government to control the freedom of expression on digital platforms.
The judiciary, once again, stepped in to protect freedom of speech in digital media. The judgment delivered by Justice Atul Chandurkar of the Mumbai High Court on September 20, 2024, declared the amendments unconstitutional, primarily mentioning violations of fundamental rights provided in Articles 14 and 19 of the Indian Constitution.
Human beings have an innate interest in communicating with others by listening and sharing their views. Developments in digital technology have provided different avenues for people to express themselves and democratized communication. However, digital tools of expression have become double-edged swords. Through digital communication, one can reach millions of people within a short period. But people are also concerned that digital tools can be used to manipulate opinions clandestinely, which poses a threat to democracy and individual independence. Different facets of communication and restrictions on communication have been an important topic of research for ages in various branches of knowledge.
One of the important theories is the democracy-based theory. The theory says freedom of speech is vital for both individual liberty and collective self-governance. According to John Rawls, a key advocate of this view, restricting citizens’ speech disrespects their status as free and equal moral agents, who have a moral right to debate and decide the law for themselves.
Governments in different countries have created laws to handle the misuse of internet freedom. In India, we have the IT Act, 2000, which provides legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication. One of the relevant sections of the Act that directly impacts internet freedom is Section 66A. Section 66A of the IT Act made it a punishable offense for any person to send offensive information using a computer or any other electronic device. The provision also made it punishable for a person to send information they believed to be false. Such laws created more apprehension in the minds of the people about whether the laws are protecting or curbing freedom of speech.
According to Freedom House’s 2023 report, there has been a persistent decline in internet freedom for thirteen consecutive years, with 29 countries experiencing worsening conditions for online human rights. Key metrics used, in examining the internet freedom, include internet connectivity, social media restrictions, website blocks, and content removal. Freedom House is a Washington-based non-profit organization founded in 1941. It monitors democracy, political freedom, and human rights.
The report shows the deteriorating internet freedom in India too, despite the Constitution of India guaranteeing every citizen the right to freedom of speech and expression. Section 66A of the IT Act was partly responsible for this decline in internet freedom. This is where one remembers the proactive role of the judiciary in protecting internet freedom in India. The honorable Supreme Court of India played an important role in this direction by giving a landmark judgment in the Shreya Singh vs. Union of India case in 2015. This case had a significant impact on the history of the Indian legal system. It revolves around the fundamental right to freedom of speech and expression guaranteed by the Indian Constitution.
The controversy relates to the arrest of two Mumbai-based girls in 2012, who faced charges under this section for their critical Facebook posts about a political bandh. The case sparked widespread protests and media attention, highlighting the clash between digital expression and legal constraints.
Though the girls were released after a few days, the arrest and the case attracted public protest. Ten criminal and civil writ petitions were filed with the Supreme Court of India. The Supreme Court clubbed all ten writs into a single Public Interest Litigation. The main argument of the petitioners was that Section 66A of the IT Act was unconstitutional because it violated the right to freedom of speech and expression. The two-judge bench of Justices Chelameswar and Nariman struck down Section 66A of the IT Act in its entirety.
The honorable Court discussed three fundamental concepts in understanding freedom of expression: discussion, advocacy, and incitement. The Court emphasized that mere discussion or advocacy of ideas, even if unpopular, is protected, whereas only incitement to violence or public disorder can justify restrictions.
Despite such a powerful judgment that made Section 66A unconstitutional, the government continues its efforts to impose some form of censorship on digital communication through the IT Act. In such situations, the courts in India have played an important role in maintaining a balance between freedom of expression, societal interests, and democratic values.
However, one must remember that open competition between the governed and the citizens cannot be resolved by the courts alone. In such situations, we may need to look for solutions outside the courtrooms and the corridors of power. We may take cues from Gandhi’s ideas on freedom of speech. Mahatma Gandhi’s ideas on freedom of speech were shaped by his commitment to non-violence and social reform. He emphasized the need for restraint and responsibility in exercising this freedom. Gandhi placed the onus on individuals to be responsible when sharing their views.
I would like to end with a sense of optimism about the future by quoting the famous Lebanese poet, Khalil Gibran: “Yesterday we obeyed kings and bent our necks before emperors. But today we kneel only to truth, follow only beauty, and obey only love.” Hope Gibran’s words become a reality, making the courts redundant for protecting our freedom of speech.