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.
