“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
– Justice Jackson, West Virginia Board of Education v Barnette
“The State cannot prevent open discussion and open expression, however hateful to its policies… the guarantees of freedom of speech and of the press are measures adopted by the people as the ultimate rulers in order to retain control over the Government, the people’s legislative and executive agents.”
– Justice Shetty, S. Rangarajan v P. Jagjivan Ram
Last week, the Peoples’ Union for Civil Liberties’ PIL challenging the constitutionality of S. 66A, IT Act was admitted by the Supreme Court. PUCL’s petition, available here, is well worth a read. S. 66A of the IT Act – and the associated rules – raise grave constitutional questions about the scope of free expression in India. The provision states:
“Any person who sends, by means of a computer resource or a communication device,—
(a) any information that is grossly offensive or has menacing character;
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages
shall be punishable with imprisonment for a term which may extend to three years and with fine.”
Further, the Intermediary Rules, 2011, which deal with due diligence obligations of intermediaries, prohibit them from publishing information that is “grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever.”
PUCL’s petition is wide-ranging. It lists a range of abusive practices that have been carried out under the aegis of the Act and the rules, including, for instance, the arrest of two young women in Maharashtra for posting – and liking – a message on Facebook, various intermediary take-down requests, and so on. The petition also focuses on the vagueness of the terms involved, the non-definition of the offenses, various procedural irregularities that are scattered throughout the legal landscape, including those found in the 2009 blocking rules. In this post, however, I would like to consider a threshold issue: does our Constitution allow for censoring “offensive“, “menacing“, “obstructive“, “annoying“, “objectionable” or “disparaging” speech?
There are good reasons to believe that it does not. The Constitution is crystal clear on the permissible grounds for restricting free speech – they are to be found in Article 19(2). The only relevant 19(2) grounds available here are “public order, decency or morality“. Previously, on this blog, we have had occasion to consider in great detail the meanings of these words. A brief summary will do here.
“Public order“: this phrase was inserted into the Constitution via the First Amendment, because after the judgment in Romesh Thappar narrowly construing the older wording (“undermine the security of the State“), the legislature felt that “the citizen’s right to freedom of speech and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence.” This demonstrates that “public order” is a term of art, limited in its scope to issues such as violent crime. Romesh Thappar, indeed, defined it as the “state of tranquillity which prevails among the members of a political society”. Subsequently, Ramji Lal Modi added an intent requirement (missing from S. 66A), and S. Rangarajan v P. Jagjivan Ram laid down the test for 19(2) restrictions, requiring a proximity between the speech and the public order violation to be akin to “a spark in a powder keg.”
“Decency“: In Bal Thackeray, the Court specifically dealt with the meaning of the word “decency”. In that case, the Court upheld an electoral restriction on religion-based campaigning, holding that: “The ordinary dictionary meaning of ‘decency’ indicates that the action must be in conformity with with the current standards of behavior or propriety, etc. In a secular polity, the requirement of correct behavior or propriety is that an appeal for votes should not be made on the ground of the candidate’s religion which by itself is no index of the suitability of a candidate for membership of the house.” The Court’s reference to India’s secular polity suggests, at the very least, that the decency requirement is itself linked to basic constitutional principles.
“Morality”: The Court’s morality jurisprudence, over six decades, is unfortunately extremely difficult to break down into a coherent line of argument. “Morality” could refer to one of three things – individual morality, public morality or constitutional morality (that is, again, principles of the Constitution like secularism, representative democracy and so on). In cases where the Court has referred to the first or second notions, it seems to have adopted a variant of the obscenity test. In one of its most recent judgments on the point, however, the Court also observed that “notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy.”
We can therefore see that the 19(2) restrictions are all defined terms of art that have an identifiable scope of operation and principles of liability and causation. S. 66A of the IT Act and the Intermediary Rules fail constitutional muster on both those counts. “Menacing”, “harassing” or causing “ill-will” (whatever these terms might mean!) clearly do not rise to a public order offense, and the legislature makes no effort – in any case – to limit their incidence to the proverbial “spark in the powder keg” situation. Similarly, being “offensive”, “objectionable” or “disparaging” does not amount to being obscene or – even on the broadest possible interpretations of the Court’s “morality” judgments – violating public morals. It is crucial to note that whereas – as the above cases show – the Court has always attempted to lay down an objective test to determine the scope of Article 19(2), words like “offensive” and “objectionable” are inherently and chronically subjective. You can at least purport to be discerning public standards of decency or morality through some kind of objective test – but you simply cannot decide, on any basis that isn’t entirely subjective, what is “offensive”.
The best that can be said for these terms is that they are over-broad. And for obvious reasons – including the chilling effect that we discussed in our last post, and argued by PUCL in its petition – the Court has given especially short shrift to over-broad legislation in the domain of free speech. In Kameshwar Prasad, a ban on all demonstrations involving government servants was struck down as being violative of Article 19(1)(a), because it encompassed all demonstrations, “however innocent and however incapable of causing a breach of public tranquillity and [did] not confine itself to those forms of demonstrations which might lead to that result.” And in K.A. Abbas, the Court held that where “the persons applying it [the law] are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution.”
As clearly as S. 66A of the IT Act and the Intermediary Rules violate the text of the Constitution, there is a much broader concern here (as the numerous instances of abuse that PUCL lists demonstrate). History shows us that the kind of speech the government is likely to find offensive or disparaging or objectionable is precisely the kind of speech that challenges the existing order. Galileo’s insistence that the earth moved around the sun; Martin Luther’s creation of protestantism by nailing the ninety-five theses to the door of the church in Wittenberg; Eugene V Debs’ protest against the World War I draft; Gandhi’s trial for sedition – every single one of these cases demonstrate that when you give government the power to determine what speech is “offensive” and what isn’t, what the public ought to hear and what the public ought to be sheltered from, and so on, abuse in the service of power is inevitable, and what end up being suppressed are ideas of fundamental and urgent importance.
The freedom of speech would be of little or no value if all that was permitted was what was “convenient”. The freedom of speech would have little or no value if people could not try and change the established order precisely by causing “annoyance” (as Galileo did, and changed all of science – for the better), by “disparaging” the existing order of things (as Martin Luther did, and changed all of religion). As the great American Justice Douglas put it so eloquently sixty-four years ago:
“The principal function of free speech under our system of government is to invite dispute; it may indeed best serve its high purpose when it induces condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”
The whole purpose of representative democracy is – precisely – the idea that the truth does not come to us pre-defined and pre-packaged, and we must adhere to it – but rather, that we create our own truths by engaging in free and open public debate, a debate that might often be heated, sharp – and yes, offensive. As Judge Easterbrook wrote in American Booksellers v Hudnut:
“The power to limit speech on the ground that truth has not yet prevailed and is not likely to prevail implies the power to declare truth. At some point the government must be able to say (as Indianapolis has said): “We know what the truth is, yet a free exchange of speech has not driven out falsity, so that we must now prohibit falsity.” If the government may declare the truth, why wait for the failure of speech? Under the First Amendment, however, there is no such thing as a false idea, so the government may not restrict speech on the ground that in a free exchange truth is not yet dominant.”
And as our Court echoed three years ago, in Khushboo: in a democracy, people can choose to either defend or question the existing social mores… an expression of opinion in favour of non-dogmatic and non- conventional morality has to be tolerated as the same cannot be a ground to penalise the author.”
S. 66A of the IT Act and the Intermediary Rules, in their present form, violate the text of the Constitution. They violate sixty-three years of judicial precedent interpreting the text of the Constitution. And most importantly, they violate our Constitutional commitment to representative democracy. Unsurprisingly, they have been abused beyond all measure or recourse. They ought to be struck down.