Censorship is saying: 'I'm the one who says the last sentence. Whatever you say, the conclusion is mine.' But the internet is like a tree that is growing. The people will always have the last word - even if someone has a very weak, quiet voice. Such power will collapse because of a whisper' - Ai Weiwei, Chinese artist and political activist, a thorn in the side of the Chinese government.
By scrapping section 66 of the IT Act, the Supreme Court merely did its duty, clarifying that the fundamental right to freedom of expression and speech extends to the internet/social media.
The ruling could not have been anything else. For a simple reason. You can arrest one person for a perceived internet indiscretion. You cannot arrest a billion people for the same indiscretion. No law can regulate a mass of people. Only democracy can.
Welcome to the age of the internet - and social media - which has given us possibly the highest public platform ever for mass expression of freedom of speech, ideas and opinion, banter and slander.
The court clarified that just because a communication in the social media is construed by some to be vindictive or threatening the communicator need not be sent to prison. Doing so would mitigate the person's access to the fundamental right of freedom of speech and expression.
The entire ruling of the Supreme Court is still to be read in detail, but one hopes the ruling by Justices J Chelameshwar and RF Nariman would eventually convey some basic truths to the executive and legislative arms of India.
The first point relates to the mindset of the law-maker politicians of India that punishment is the panacea for all ills. This mindset of our politicians has not yet adapted to the changed communication scenario where anyone and everyone, not necessarily an Indian, is a communicator and the platforms which deliver the communications know no national boundaries and are therefore beyond conventional regulation.
Many of us have seen the various phases of communication technology in India, from the age of telegram to telephone to the internet. Today the social media is as much a source of news and information and entertainment as the traditional sources such as newspapers, radio and television. Importantly, we are exposed much faster to a greater number of ideas and opinions like never before. Some of these ideas are good. Some are bad. Some, outright ugly. Some, tolerant. Some, intolerant. Such a situation, in essence, is what freedom of speech and expression in an open society means.
The arcane mindset of our politicians would want to regulate such an environment in the vain hope that only regulation or censorship will compel citizens to be tolerant. That is not the right way. The freedom to express and speak also gives us the ability to challenge ideas and opinions which we think and believe are wrong. Such challenges are the need of the hour. Not section 66.
Self-regulation through such challenges is already happening. As users we can flag communications which we find inappropriate. And such content is removed by the social media sites which also ensure that real extremes do not find their way into the internet world. Purists may argue even this is a kind of censorship. To them I would say: Yes. But just because you have total freedom to express yourself would you roam naked on the streets? Why not? Because you can reason. Isn't that self-regulation in a sense? So, no point splitting hairs. Suffice to say there is a checks and balance system which is beginning to make its presence quietly felt in the social media. No need for section 66. Let us be clear about one thing: The greater aim is creating an environment for free exchange of ideas and expressions rather than focusing on controlling the extreme fringe.
Let me quote from a portion of a brief submitted to the US Supreme Court last year by the Reporters Committee for Freedom of the Press. Intervening in a case - Elonis vs United States - the Committee said: "Public commentary is frequently meant to provoke-whether by urging listeners to rethink their position on an issue or to take action-and this country has a long history of protecting provocative speech."
The case relates to a person called Anthony Elonis who was given a prison term for posting what was construed as hostile and threatening content on Face Book. Elonis challenged his conviction in the supreme court saying it is an infringement of his rights under the First Amendment.
The arguments have closed in this case and the judgment is expected sometime this summer. The case focuses on (a) how and when can a communication in the social media be construed as a real threat and (b) whether the communicator can be convicted if it is proved that any reasonable person would regard the communication as threatening. This is the first time the US Supreme Court has heard a case considering true threats and the limits of speech on social media.
(Social media watchers the world over are eagerly awaiting the outcome of this case given the fact that the United States Supreme Court way back in 1997 had ruled that any regulation of the communications over the internet were unconstitutional. In the Reno vs American Civil Liberties Union case, all nine justices of the apex court unanimously struck down certain anti-indecency provisions of the Communications Decency Act saying they violated the First Amendment's guarantee of freedom of speech. This was the first ever occasion the court had ruled on regulating the internet. The ruling said the controversial provisions of the Act were unconstitutional and unenforceable, "except for cases of obscenity or child pornography, because they abridge the freedom of speech protected by the First Amendment and are substantially overboard. The Internet is entitled to the full protection given to media like the print press; the special factors justifying government regulation of broadcast media do not apply".)
This brings me to the second point. The Indian government has reason to monitor the social media for situations where groups of people with extreme positions may exploit the social media sites to create tension or sway or even coerce public opinion. Such situations have come to pass, specially during the run-up to the 2014 general election, some of them involving groups reportedly with communal or terrorist affiliations. It is certainly worrying.
So, what then happens to our premise that freedom of speech and expression overrides all other Constitutional/national concerns? Is an act of sedition or a direct threat to the security or integrity of the country to be overlooked in order not to tamper with freedom of speech and expression?
In the US, there are exceptions to the First Amendment which include inciting imminent lawless action, fighting or inflammatory words, true threats, obscenity, child pornography, invasion of privacy, defamation and intentional infliction of emotional distress.
India too has such exceptions. Clause 2 of Article 19 of the Constitution imposes certain restrictions on the freedom of speech in case of security of the State, friendly relations with foreign States, public order, decency and morality, contempt of court, defamation, incitement to an offence, and sovereignty and integrity of India.
However, the situation is a bit different in conflict-borne/torn nations particularly in the developing world, where to some groups of people the internet and the social media is a means to a dangerous end. The dilemma of these nations, including ours, is how to find a balance between freedom of expression and protection from divisive forces and incendiary actions. Yes, violent or extremist content has to be monitored but such monitoring, even if well-intentioned, will have damning consequences for our freedom.
The secondary dilemma is who will decide what is violent or extreme content? Some content, like videos showing beheading of people or maiming animals or raping girls, is certainly violent. But what about that content which is not so extreme but still raises alarms?
With section 66 now gone, we know that regulation is not the answer. As that is the best deterrent our politicians can ever come up with, we need not look up to them for an alternative. It is a waste of time. We have to check with the Supreme Court. What will it say?
It is not an easy dilemma for the court to solve. For, the judiciary is bound by jurisprudence. Writing in Justia, a well-known American legal commentary website, Sherry F Colb, Professor of Law and Charles Evans Hughes Scholar at Cornell Law School, sums up the conundrum before the US judiciary (or any other judiciary for that matter): "In Elonis vs US, the question is whether the person who utters a true threat must subjectively intend to bring about fear of bodily harm or death or whether it is enough that a reasonable person uttering the words in the context would foresee that his words would be interpreted as such a threat."
Having said that we should look up to the supreme court, I ask: Should we leave it to the courts? Are we not a democracy where the people's will is supreme and which is represented by the legislature? There we go again, facing a dilemma. The legislature is incapable of broad thinking. Depending on judicial intervention amounts to surrendering our democratic rights. What do we do?
We are all communicators in this internet age of ours. Let us frankly discuss how to resolve these dilemmas. The New Yorker in its December, 2014 issue raised some of the questions pertinent to the Elonis vs. US case which are also pertinent to us in the Indian context. "When does communication cross the line into being an illegal threat? Under what circumstances might a Face Book post be considered a threat? What kind of communication constitutes a threat, and does it make a difference whether the communication was made online or offline?"
These are questions which may not be of immediate concern to us. But rest assured, one day they will be.
Disclaimer: (This article is a personal opinion piece of the author VV Padmanabha Sharma)
Comments
0 comment