Live Chat: Win for Free Speech

The live chat transcript was published in the Hindu on March 24, 2015. Geetha Hariharan participated in the live chat.

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In a victory for proponents of free speech, the Supreme Court today struck down Section 66 A of the IT Act, which had permitted the arrest of people for posting “offensive content” on the internet. However, the Court upheld Section 69A, which allows the government to block websites based on a set of rules.

What are your views on this ruling? Join us for a live chat today at 5.30 pm with:

Gautam Bhatia, a practicing lawyer and author of “Offend, shock or disturb: Free Speech under the constitution” forthcoming in OUP.

Geetha Hariharan, a Programme Officer at Centre for Internet and Society, focusing on Internet governance and freedom of expression.

Lawrence Liang, Lawyer and researcher at Alternative Law Forum working on free speech.

and G Ananth Krishnan, Coordinating Editor with The Hindu

The Hindu: Hi all, welcome to the live chat on the Supreme Court’s much-celebrated decision to strike down Section 66 A of the IT Act. There are caveats of course: For instance, the Court has upheld Section 69A, which allows the government to block websites based on a set of rules.

5:30

The Hindu: Welcome to Gautam Bhatia, a practicing lawyer and author of “Offend, shock or disturb: Free Speech under the constitution” forthcoming in OUP.

5:31

The Hindu: Geetha Hariharan, a Programme Officer at Centre for Internet and Society, focusing on Internet governance and freedom of expression.

5:31

The Hindu: Lawrence Liang, Lawyer and researcher at Alternative Law Forum working on free speech.

and

G Ananth Krishnan, Coordinating Editor with The Hindu

5:33

Comment From shraddha

This is landmark judgement,though.

5:34

Comment From Mystiquethinker

I would like to ask you one thing was that necessary to abolish Sec66 A completely.

Gautam Bhatia: Yes, in my opinion it was. The terms of S. 66A – such as “grossly offensive” – went beyond what is constitutionally permitted by Article 19(2). It was impossible to “sever” these terms from the rest of the section. In such cases, the Court has no alternative but to strike down the section in its entirety.

5:34

Comment From Rohan

I’m particularly interested in the relevance of Sec 66 A in West Bengal. Over the last few years the TMC government has massively curbed freedom of speech. Do you think this will deter the ruling party?

5:35

The Hindu: Gautam, Geetha and Lawrence would you like to respond?

5:35

Lawrence Liang: typing

5:37

Comment From kc

so does this mean its okay for anyone to say anything over the internet? Does the internet need separate rules? Anything that cant be said over a microphone or using any media shouldn’t be said over the internet either.

Gautam Bhatia: No, the standard penal laws – against defamation, hate speech (S. 153A), religious incitement (S. 295A) continue to apply. Yes, the argument that the internet needs separate rules when it comes to the *content* of speech was precisely what was rejected by the Court.

5:38

Comment From Jai

I would like to ask what when people cross the boundary of decency when they post comments on social network?

5:38

Lawrence Liang: So the court goes into this question of whether 66A needed to go in its entirely or could it be saved. The ASG suggested that it could be read down by the courts, and offered a range of ways it coudl have been done. But the court responded to say that the restrictions in 19(2) are clear, and if the impugned law does not fall within it, then to ask for a reading that incorporates other principles only in order to save it would be to do violence to the language of Sec. 66A

In para 49 they say

What the learned Additional Solicitor General is asking us to do is not to read down Section 66A – he is asking for a wholesale substitution of the provision which is obviously not possible.

5:38

Geetha Hariharan: @Mystiquethinker: Section 66A makes it a criminal offense to make any post on the Internet, that might “grossly offend” or be “menacing”. If you happen to post false information (like a spoof), with the purpose of annoying, inconveniencing, criminally intimidating or causing hatred, you can be criminalized for that, too. However, the terms “annoyance, inconvenience, hatred, ill-will”, etc. are vague. Section 66A does not define them. Applying the law to misuse it becomes extremely easy then – and this has happened.

5:38

Comment From Guest

The Supreme Court has struck a delicate balance

5:39

Comment From neerulal

It’s a great step on part of judiciary. Infact it’s the judicial activism that washed much of the waste created by legislature. Hope it was as experienced and sensible as judiciary..

5:39

Comment From shraddha

according to me it’s imp to important to amend it completely… coz it directly infringes the article19(a) right to freedom of speech and expression.

5:40

Comment From Danish Sheikh

why do you think the Court is so sparse in its analysis of the website blocking rules as opposed to 66A?

5:40

Gautam Bhatia: @ Jai – The boundaries of decency will be determined by our existing penal laws – Sections 295A, 153A and the rest.

5:40

The Hindu: @gananth would you like to respond to the last one?

5:41

The Hindu: on 69A

Comment From Guest

Despite striking down Section 66A, Article 19(2) provides sufficient grounds for the government to protect public peace. It is comprehensive and is applicable to all media. Therefore, in a way, Section 66A was not required at all.

5:42

Lawrence Liang: Danish, you are right. One wishes that the court had paid as much attention to the Blocking orders as they did 66A. I feel they have gone on a technical reading of the procedures established to conclude that it is at least not as arbitrary as 66A, but fail to acknowledge that the ways the orders have been operationalised completely lack transparency and are hence arbitrary

5:42

Comment From Eric

I would say yes. The best and most practical control of social media comes from the maturity of its users. We can make a useful presumption that useless content will simply not be shared substantially. Instead of making laws, we need to make mature citizens and users of social media.

5:42

Comment From saurav

what are the others instruments available with govt. to curb cyber crimes ???

5:42

Gautam Bhatia: @ Guest – True, but you still need a *law* that would authorise the police and other agencies to implement the restrictions under Article 19(2) in specific situations. That is why we have speech regulating provisions in the Indian Penal Code.

5:43

Comment From shashi

I think sec 66A should be amended and specific definition of “offence” must be brought in, because there needs to reasonable restrictions under article 19(2). But having such vague clauses shows how it can be misused by people in power.

5:44

Geetha Hariharan: @saurav: As Gautam said, the IPC’s provisions such as Sections 153A and 295A are available to the government as limitations on speech. In addition, there are other offences in the IT Act (Sections 66B to 67B).

5:44

Comment From Mystiquethinker

In my point of view there should be few limitation . You cannot say anything to anybody. I am afraid what will be its result in future.

5:45

Gautam Bhatia: @ Shashi The Supreme Court has held before – in S. Rangarajan’s case – that causing offence doe not fall within Article 19(2). In fact, quoting the European Court of Human Rights, the Supreme Court said that the freedom of speech is nothing without the freedom to “offend, shock or disturb.” That’s actually why 19(2) is so specifically worded, and restricts itself to “public order”, “decency or morality”, “incitement to an offence”, “defamation” etc.

5:45

Lawrence Liang: @Mystiquethinker To add to the previous point, the court also did consider whether they could apply the doctrine of severability but concluded that because “The present is a case where, as has been held above, Section 66A does not fall within any of the subject matters contained in Article 19(2) and the possibility of its being applied for purposes outside those subject matters is clear. We therefore hold that no part of Section 66A is severable and the provision as a whole must be declared unconstitutional.”

5:47

Comment From Ashish

is it means??Now morphed girls photo posting ,revealing individual secret to harm him/her physcologicaly is allowed publicly.

Lawrence Liang: Not at all. There are still other laws including obscenity laws and privacy laws under the IT act that deal with this

5:47

The Hindu: What happens to all the cases already booked? Is the verdict retrospective?

5:48

Gautam Bhatia: @ Ashish No. There is the Indecent Representation of Women Act, which prohibits that. There are also laws against blackmail and criminal intimidation under the IPC.

5:48

Comment From Cherry

A remarkable judgement to free their speeches n voices

Lawrence Liang: absolutely, an important first step towards a free jurisprudence of the 21st century

Comment From Sarpanch

66A declared unconstitutional – good. But, a religious hate-filled reaction will it still attract 295 IPC.

Lawrence Liang: yes and 153A of the IPC amongst others

Comment From Geek

If this is all about facebook, remove it and everyhing is fine!

Lawrence Liang: sorry, but thats no longer an option after this judgment 🙂

5:49

Gautam Bhatia: @ TheHindu: to the best of my knowledge, no. A judgment is not ordinarily retrospective. Subject to correction.

5:49

Comment From Neel

Doesn’t the line of reasoning adopted by the SC throw open the possibility of other restrictive laws being questioned too?

Comment From Eric

There is plenty of scope for an independent regulator including representatives of social media and internet users to regulate the restrictions under Art 19(2). Giving the police or any other governmental agency the power to prosecute potential offenders involves the unnecessary risk of political bias which underlies the SC’s judgment. Clearly, severing the provision would have been messy. Moreover, the judgment is an unapologetic thrust in the direction of protecting fundamental rights.

Comment From shashi

@Gautam one must not forget how social media can be used to incite violence against a perticular community and force exodus (as happened in Bangalore few years back). So, there has to be reasonable restrictions. Else the government would look helpless in such incidents

5:50

Comment From Cherry

i agree with the comment of mystiquethinker

5:50

Comment From Panky

Excellent decision from Court!!!!

5:51

The Hindu: Gautam, a question for you from Shashi

5:51

Gautam Bhatia: @ Neel Yes, it does. For instance, crucial to the Supreme Court’s reasoning is a distinction between incitement and advocacy, and a need for proximity between speech and the 19(2) restrictions. Now if you look at the cases where the Supreme Court upheld 295A (1957) and sedition (1962), it did so on the specific understanding that there was no need for proximity – a mere “tendency” was enough. But in this case, the Supreme Court specifically says that the tendency must be to *imminent public disorder*. Now that severely undermines the foundation of 295A and especially sedition, because it’s really hard to argue that spreading disaffection against the government has an imminent relationship with public disorder. So yes – I think it might just be time to try and have some of those old judgments reviewed!

5:51

Comment From Shanmukh

@ Eric. Social censorship works in a society where everybody is educated and mature. India isn’t quite there yet. But this 66A was abused and it’s good that it is going away.

Lawrence Liang: We perhaos need to be careful about the argument of whether India is ready. That was the same logic that colonial authorities use to introduce a number of speech regulating laws. Worth having a look at Lala Lajpat Rai’s reply to the Indian Cinematograph Committee

5:52

Gautam Bhatia: @ Shashi Yes, I agree. But 66A went far beyond those reasonable restrictions. The Constitution allows for reasonable restrictions in the interests of public order, and we have a long series of cases interpreting what that means. I think that would speak to your concern.

5:53

Gautam Bhatia: @ Shanmukh: See also the arguments that Raja Rammohun Roy made as fas back as 1823 about the freedom of the press, when the colonial authorities were using the same argument about Indians not being ready.

5:53

Comment From Guest

The government has Section 69A to prevent mass exodus type situations. Am I right?

Lawrence Liang: Yes, and that is an important concern but you must note that even during the NE exodus, the government exceeded its brief and even blocked websites that were trying to quell rumous

Comment From Sam

Yesterday’s column from readers editor had some suggestions on stopping rumors being spread via SM. I think, those kind of methods will go a long way in stopping falsehoods being spread than banning content and sections like 66A

5:54

Comment From Eric

@Lawrence Liang. Precisely. One has to be cautious of underestimating or belittling the input from regular users of the subject. Giving more deliberative platforms can only encourage participation and education of its users.

5:54

Comment From Guest

A case will be governed by the law applicable on the date the offence was committed, unless otherwise stated. Therefore, I think the ruling will be prospective only

5:55

Comment From Neel

What is the weight that precedent has in our legal system? For instance what will it take for a judge to say the previous judgements on sedition are too restrictive?

Lawrence Liang: We are totally a precedent based system, but preedents can be enabling and restrictive, so the way it develops is through slow processes of comparing and distinguishing

5:55

Comment From Neel

What is the weight that precedent has in our legal system? For instance what will it take for a judge to say the previous judgements on sedition are too restrictive?

5:55

Gautam Bhatia: @ Guest Yes, I think that’s correct.

5:55

Comment From Shiva

What does the judgement imply for posting adult/sexually explicit/pornographic content online?

Lawrence Liang: It does not affect that: We have obscenity laws under the IPC as well as special obscenity provisions within the IT act that deal with it

5:56

Comment From Utkarsh

SC proves how powerful our democracy is. It is good that citizens are free to post anything they want now, but shouldn’t we try to teach the people their responsibilty with this freedom?

5:56

The Hindu: Geetha your thoughts on that?

5:56

Comment From Vikas

Rather debating we should demand action on such people who in real sense do the offending act via speech and social media, arresting some body who has just shared some views is not right…..

5:56

Gautam Bhatia: @Neel It’s a hard question. I don’t think a Supreme Court bench will be able to directly overrule the sedition case. That was decided by a five-judge bench, and so you;d need a seven-judge bench to actually overturn it. I think what we can try and argue is that in the 50 years since the Court upheld sedition, the foundations of that decision have been so greatly undermined by succeeding cases, that at least in 2015, sedition is unconstitutional. It’s a hard argument to pull off, but I think it’s worth a shot.

5:57

Comment From Guest

The population has moral responsibility to not spread rumours over SM & the citizens need to be mature enough to not take everything too personally. You have the choice of ignoring what you deem offensive. If any of the above fail, it is because the society has failed, not the legal system.

Comment From zenmist

what if i get cyber bullied ! Do I have any recourse now ?

5:59

Comment From kkamal

implementation still a matter of concern

Lawrence Liang: Certainly, and esp for the intermediary guidelines. Often when a court reads down a provision, rather than striking it down, there is a gap between the law and enforcement

Gautam Bhatia: @ Zeminist yes – for instance, under criminal intimidation provisions in the IPC.

6:00

Comment From Guest

Can we not issue guidelines for social sites like facebook twitter and others to filters such content from being posted(I think it’ll show some pop-up in general.?)

6:00

Geetha Hariharan: @Utkarsh: Perhaps. However, the freedoms enshrined in out Constitution say our freedom of speech and expression can be restricted by the government only under specific circumstances: see http://indiankanoon.org/doc…. The _government’s_ restrictions on speech must abide by these – whether they teach citizens what is (morally) right to speak or not is different from what we have a right to say. As Gautam has mentioned before, Article 19(1)(a) gives us the right to “offend, shock or disturb”.

6:00

Gautam Bhatia: @ Guest – the problem with filters are that they are *invariably* over-inclusive.

6:01

Comment From Vibhu

This decision once again upheld citizen’s belief in the constitution and the Supreme Court. But this power also comes with an added responsibility to the citizens to be sensitive towards the emotions of communities and other sections of the country.

Gautam Bhatia: @Vibhu Absolutely. This is why it’s important to make a distinction between two important ideas – the fact that it is your *right* to do or speak in a certain manner doesn’t always mean that you *ought* to speak in that manner.

6:02

Comment From Negi Gaurav

Striking down 66A is good for democratic values and citizenry expression. It will enhance the power of common mass and will affect political procedure. Free speech is fundamental right of Indian citizen , However judicious use of right is necessary to check hate crime.

6:03

Comment From Guest

We appreciate the verdict… It was much needed but there still is a question still unanswered, why do we need judicial activism to strike all those laws that are pushing us back by several decades. If such laws are always have to be decided by Supreme court, what do we have legislature for?

6:03

Comment From Pankaj

A welcome judgement by SC today. Section 66(A) was indeed an uncontitutional provision which accounted for few arrests considering the arbitrary and vague terminologies. But, certainly regulation of speech over internet should be regulated in a more robust and comprehensive manner

6:04

Gautam Bhatia: @ Guest To be fair to our parliaments, legislatures all over the world restrict speech, and it falls to the Court to correct them. Legislatures are composed of human beings like us, and often, because of the position they are in, they tend to overestimate the dangers of free speech, and underestimate its importance. But that’s why we have a constitutional court. 🙂

The Hindu: If taken to its logical extreme, does the SC verdict mean that anything goes on the internet?

6:07

Comment From Serendipity

@The Hindu: Free Speech is not absolute. There are always restrictions. It depends on how the law is drafted.

Comment From Vibhu

@Hindu. No not anything goes on the internet. All elements like pornography, abuse, etc which are illegal in general sense also applies to the internet.

6:08

Gautam Bhatia: @TheHindu No. The SC expressly says that speech which bears a proximate relationship to any of the 19(2) categories may legitimately be restricted. Many of the speech-regulating provisions of the IPC do just that. These provisions are agnostic towards the medium – for instance, defamation will be punishable whether it happens offline, or over the internet.

6:08

Comment From charan malhotra

our Sc lifted great barricade in the freedom of speech.. but even if any one explicit n posts the images of others n morphing ? then what could be the next step to take an action on those convicts?

Geetha Hariharan: @charan: Other provisions are still in operation under the IT Act and IPC that can be used. For example: Section 66D (cheating by personation), 66E , etc. I would urge you to look at Section 67, 67A and 67B of IT Act as well.

Comment From manoharan

right to experss includes right to go online in thought

6:11

Geetha Hariharan: @TheHindu: No. Restrictions placed under one or more of the conditions under Article 19(2) of the Constitution are legitimate (online and offline). Also, offences under the IPC (Sections 153A, 295A, 292) continue to apply. As also the offences under the IT Act, which target online speech (Sections 66E, 67, 67A and 67B, for instance).

6:11

Gautam Bhatia: By the way, as an aside, I’d like to add – this judgment is extremely lucid and accessible, and really eloquent at times. Do read it. 123 pages sounds like a lot, but it’s easy reading – shouldn’t take more than an hour.

6:09

Lawrence Liang: @The Hindu Not at all, we still have all of the good old speech restrictive laws including in the IPC, it is important to remember that even in the past 66A cases, they have rarely been filed in islation, and are usually accompanied by 124A, 153A or 295A of the IPC

6:09

Comment From Dhruv

A Great Decision to uphold Free Speech. We do not want to be Police State like CHINA but our Indian legislators are slowly taking the country far from Democracy and denying civil rights to civilians. Great decision from Supreme Court. This is a lesson for the indian politicians who think they can play with our fundamental rights and impose their narrow mindset on us.

The Hindu: Thank you all so much for joining the chat.

6:14

The Hindu: The panellists and readers!

6:15

Geetha Hariharan: Thanks!

6:15

Gautam Bhatia: Thank you!

6:15

The Hindu: And for making this a lively and informative debate. Watch this space for more live chats on emerging issues.