Latest Posts


Tuesday, November 27, 2012

The Facebook era: Does the right to express includes the right to insult?

The arrest of Shaheen Dadha, who posted a comment on her Facebook page, and her friend, Renu Srinivasan, who 'Liked' it, has again brought to the fore the debate about freedom of speech and attempts to curb it. By all accounts, the arrest was unjustified and a perfect example of arbitrary exercise of executive power. Legitimate questions are being asked whether the haste with which the Maharashtra police acted was due to political pressure. Thankfully, the girls were granted immediate bail. Now if only the charges against them are dropped with equal immediacy!

Despite all that, to say that Section 66A of the Information Technology Act, under which these girls were charged, is a "perverse provision of law" and so should be abolished undermines the lawmaking process and wrongly assumes the law was promulgated only with the intention to check free speech online. As a defender of the rule of law, I submit that an administrative authority acting 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 offensive, has a menacing character or causes annoyance, inconvenience, insults or promotes hatred or ill-will. The inclusion of annoyance and inconvenience can lead one to believe 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 fully 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 is 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, the anonymity of the online world necessitates that electronic communication that 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 if 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 in the constituent assembly that it would be incorrect to assume fundamental rights are absolute. Freedom of speech doesn't confer absolute right to speak sans responsibility.

Shaheen Dadha's comment, when compared to other things one reads online, is rather benign. Her post, about a revered local leader, may be perceived as ill-timed, especially since the law stipulates 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, persistently published grossly offensive information intended to spread ill-will and hatred about Chidambaram.

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 that occupies a preferred position in the hierarchy of liberties. 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? As the virtual world offers no physical contact, does that mean it requires no checks on what one can say? A hallmark of progressive nations is the ability to debate contentious issues and find solutions. One hopes some of these questions will be answered in due course.

Till then, the recent advertisement "behave yourself India, the youth is watching" can well be turned on its head. 
( By   Satvik Varma, Source :

No comments:

Post a Comment