“I disapprove of what you say, but I will defend to the death your right to say it” —- Evelyn Beatrice Hall [A Quotation often cited as the modern principle of freedom of speech]
The constitution of India has enshrined in itself a few fundamental rights, ‘Right to Freedom of Speech and Expression’ [Article 19(1)(a)] grants the people of India the most basic of all rights. The rights to express one’s beliefs, opinions and convictions without any fear in any form of writing, printing, music, art, painting, film etc. The foundation of a free society rests on an open flow of ideas and thoughts. This freedom to express encompasses a whole spectrum of liberties against suppression and regulation.
Such stated freedom is essential to create an atmosphere of open discussion which leads to an active participation in democracy and peaceful co-existence of diverse communities. This makes it a lot more crucial to preserve this right from violation or misuse. Celebration of free speech requires a policy and behavior of mutual respect than merely tolerating each other’s opinions. Social media is the most widely used platform to exercise this right. From negotiation to allegation, from chat to debate, from live cam to scam it is all happening out there. A status update, a tweet, a like, a comment, reactions, #tags. From celebrity sensationalism to widespread outrages, it is all laid out on the world wide web. This freedom and access brings many dynamic variables in the system, and so these rights are subject to certain restrictions imposed on print and electronic media. However, quite interestingly social media is far out of any regulatory scope of any such restricting laws or provisions. The First Amendment to the Constitution which was a result of journalist Romesh Thapar’s efforts, made on June 18, 1951, states that “interests of the sovereignty and integrity of India, the security of the state, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence” will be paramount and freedom of expression will not be unconditional.
Rajshree Chandra a political science teacher at Janki Devi Memorial College, DU and the author of the book The Cunning of Rights: Law, Life, Biocultures discusses at length various examples of how powerful political figures like Adityanath Yogi (CM-UP) use the constitutional principle of “reasonable restrictions”– embedded in one or more of the IPC provisions of section 295 A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs), section 124A (sedition), section 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony) and section 505 (statements that clause “public mischief”). Section 292: Makes obscene publications (book, paper, pamphlet, writing, drawing, painting, representation, figure or any object) an offence. The penalty is 2 years (first conviction) or 5 years (second conviction), and/or fine. Section 298: Penalises the “utterance of words” that might hurt the religious feelings of any person; the penalty is 1 year and/or fine.
IT Act of 2000 has been the subject of much debate, it’s section 66A criminalizes online communication that is “grossly offensive”, has a “menacing character”, or causes “inconvenience or annoyance”. Section 69A authorizes the government to block websites, through a set procedure, Section 79 deals with the online “intermediaries” – search engines, social media platforms etc. to “take down” illegal speech/content that users might have posted and are hosting. The Apex court in a landmark judgement has scraped Section 66A, upheld Section 69A and it upheld Section 79, limiting its scope by “reading it down.”
Heart of the Article 19 says: “Everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” In a highly digital era and unprecedented speeds of connectivity we can share videos, hashtag celebrities, blogging, microblogging , YouTube channels are flooding the social media. Users generating and consuming content in high quantity must promote the practice of self check and research. Only real awareness of the responsibility that comes with these great rights can prevent their violation and abuse.
Judgments and case studies exhibiting the ‘Status-quo’ of India -on violation of constitutional right on social media sites.
• On March 25, filmmaker Sirish Kunder had a FIR registered against him over his tweets criticising the BJP’s decision to appoint Adityanath as UP chief minister.
• On April 15, the Delhi BJP lodged a complaint with the police against Delhi chief minister Arvind Kejriwal for dubbing the Election Commission as Dhritrashtra!
• 20 November 2012, Two girls arrested in ‘Bal Thackeray Facebook incident’, Shaheen Dhada posted a comment on Facebook wall on the demise of Shiv Sena Chief Bal Thakeray regarding his death. Her friend ‘liked’ her content. They were arrested under Section 295(a) of IPC and Section 64(a) of IT Act, 2000. Granted bail after fine of Rs.15,000 each and written apologies.
• “The Cunning of Rights: Law, Life, Biocultures” – Rajshree Chandra