Freedom of speech and expression – Internet / social media

  

Reading time : 8 minutes

Article 19 of the constitution provides freedom of  speech which is the right to express ones opinion freely without any coercion threat and fear, through oral, written, electronic, broadcasting or though press (print media). In Drafting committee there was debate on this article that Freedom of press is not mentioned in the  article and hence it is a serious lapse of drafting committee but Dr Ambedkar while replying to this in this context said  that “ Press” has no special rights which are not to given to an individual or a citizen .Dr. Ambedkar further said that the “editors or managers of press are all citizens of the country and when they chose to write in newspapers they merely express their views as a right of expression hence right of expression includes right of press.

This right was existed  in  ancient times also . In” Bhagwat Gita” appx. 5000 years ago , lord krishna gave holistic view of freedom of expression  to arjuna and said :-

                 || अनुद्वेगकरं वाक्यं सत्यं प्रियहितं च यत् ||
                 || स्वाध्यायाभ्यसनं चैव वाङ्मयं तप उच्यते ||[1]

Austerity of speech consists in speaking words that are truthful, pleasing, beneficial and not agitating to others, and also in regularly reciting vedic literature .This is penance of as far as talking .

In 17th century these lines of ‘satire’ by Nivedita Dikshita’s  ” Kali VIdambana” (Mockery of kali yuga), says :-

Why fear them? Why pay attention? Why listen opponent’s words? Just contradict them immediately. You are sure of victory in debate! The Five rules for victory are – be cool,be shameless, be mocking, despise your opponent and praise those in power. If mediator is not learned, shout your way to victory. If mediator is learned, simply accuse him of being biased !

For a moment, just visualize the kind of public debate on television, and other blogging sites. These images will float in your mind .The tone, the tenor, the language, has crossed all limits of norms of standard decency & respect among debaters, is missing. Kautilya’s Arthashsatra prescribes specific monetary fines for ‘Mithyaropa’ (false accusations) and ‘Vakparushya’ (abusive language). Is it freedom of speech and expression that is granted in our constitution? Is there be a cap to this behavior or attitude? In todays world much discussion is on what kind of art is acceptable and what is objectionable. In these matters one has to simply follow the laws of the land. In simple way we can say if we want to judge an art, we have to use the principles of asthetic .                      

Article 19 of Constitution of India[2], is always in dock for the restrictions put in clause 2. The state can impose reasonable restrictions on the exercise of ‘Right of Freedom of Speech and Expression’. Two conditions have to be satisfied if a restriction is to be held Constitutional. First of all it must be reasonable and this will be decided by courts . What is reasonable before ten years ago, may not be so today . Thus there is no fool-proof test of reasonableness or restriction, which may be applied to every case which is coming before the court. Secondly such a restriction must relate to one of the nine heads enumerated in our Constitution. There was always a conflict on the point whether a “restriction” would also cover ‘prohibition’. This conflict was resolved by supreme court in Narendra Kumar v. Union of India[3] where it was held that ‘Restriction’ would include a ‘prohibition’ ,needless to say such a prohibition also should be ‘reasonable’. Under ‘Doctrine of judicial Review ‘which is part of our constitution it has been observed by supreme court ‘The determination by the legislature of what constitutes a reasonable restriction is not final or conclusive, it is subject to the supervision of courts. Supreme court is custodian of fundaments rights and therefore watches and guards the rights guaranteed by the constitution and while exercising its functions, it has the power to set aside an act of the legislature ,if it is violative of freedom granted under the constitution Chintaman Rao v. State of M.P.[4]. In Hamdard Dawakhana v. Union of India[5] a question arose before Supreme Court that, an advertisement designed to promote sale of certain medicines was covered under freedom of Speech and Expression? Supreme Court answered the question in negative, the Apex Court observed that, advertisement was part of Freedom of Speech but advertising for ones commercial business was not part of the Freedom of Speech granted by our Constitution. In MSM Sharma v. SriKrishna Sinha & Others[6] , this case, also known as ‘search light case’. Mr sharma was editor of daily newspaper of Patna published a report on May 31st 1958, the proceedings of Bihar Assembly which include the portion which was to be expunged form proceedings of house as ordered by Hon’ble Speaker of the Assembly. The Bihar Assembly felt that there was Breach of  Privilege by Mr. Sharma. A committee was appointed by House. Mr sharma was called before the Committee with a show cause, why appropriate action should be initiated against editor of daily paper . Mr sharma filed a dispute under Article of 226 of Constitution of India, withdrew it, and raised a dispute in Supreme Court under Art. 32 of Constitution of India. The Petitioner urged to Apex Court that his Fundamental Right under Art. 19(1)(a) is infringed and he requires relief from non-petitioner. On behalf of Respondent it was urged that ‘expunged portion’ was not part of Proceedings at all, moreover their was no Right to Petitioner to publish the proceedings of house without their authority, which amounts to Breach of Privilege of House and House has right to initiate action against  Petitioner, under Art. 194(3) of the Constitution. The Apex Court pronounced in its verdict that provisions of Art. 19(1)(a) which are general, must yield to Art. 194(1) and later part of clause (3) which are special. Hence Assembly has privilege under Art. 143(3) to prohibit the publication. We can see that there was conflict of rights under constitution but after taking into considerations the facts on records , judgement is delivered. In yet another case, Amit Sahani v. Commissioner of Police and Others[7] also known as ‘Shaheen Bagh’ case. In this case, The Legislation, in its wisdom enacted the Citizenship (Amendment) Act 2019, which was supported and opposed. Aggrieved by this Legislative Amendment, a section of society has filed a petition under Art. 32 of Constitution of India but no stay on legislation was granted by court. This case was filed originally in Delhi High Court as Writ Petition (civil) no 429/2020. It was prayed in this that, protesters protesting against this Legislation resulting in public inconvenience, be cleared , because of encroachment of protesters but their was not clear orders from High court, resulting , no change in situation. Hence against order of High Court, present Appeal was filed by way of Special Leave Petition. The supreme court in its order said that, we live in age of Technology and Internet, where social movements around the world have swiftly integrated digital connectivity into their Toolkit, be it, for publicity or communication. Technology however, in a near paradoxical manner which is fueling movements which are embracing their leaderless aspirations and ducking usual restrictions and thus creating polarized environment. The court further said that they have no hesitation in concluding that such kind of occupation of public ways, whether , the sight in question or anywhere else, for protests ,is not acceptable and administration ought to take action to keep area free from encumbrances.

In todays social media there are abuse, harassments, impersonation, misinformation, synthetic or manipulated media, privacy infringement and sensetative adult content. looking to these issues ,the Ministry of Electronics and Information Technology issued new rules in Feb 2021 under The Information Technology Rules 2021[8]. Three months time was given them to comply with new rules. The new IT Rules 2021 aim to empower  ordinary users of social media and OTT platforms with a mechanism for redressal and timely resolution of their grievance with help of Grievance Redressal Officer (GRO) who should be stationed in India. Companies like Google, Telegram, sharechat and LinkedIn have shared the details with Ministry as per the requirement of new norms but Twitter, WhatsApp  have sought extension. The WhatsApp has challenged the new rules,  stating to Delhi High Court on three grounds (I) It violates Fundamental Right to Privacy and Freedom of Speech and Expression under Art. 19 of Constitution . (II) It is Ultra vires to the Information Technology Act 2000. (III) It is violative of Art. 14 of the Constitution. Can we say WhatsApp has ignored Art. 19(2) of the Constitution of India? New IT Rules say origin of a message is only required for the purpose of prevention , deletion ,investigation, prosecution or punishment of certain offences which are related to sovereignty and integrity of India, security of state, friendly relation with foreign states, public order, incitement to an offence relating to above or in relation with rape, sexually explict material or child sexual abuse material, punishable with imprisonment for a term of not less than five years .

Many other countries have also started raising their concerns over misuse of these platforms or blogging sights, for illegal activities. On Dec 11, 2019 US and European Unions issued joint statement that encrypted messages are important but it is a big challenge to law enforcing Agencies hence De-encrytion (De-coding) is required to protect the victims and public at large. In July 2019, The UK, Australia, Newzealand and Canada, in a communique, told Tech. companies should develop such a mechanism to their encrypted products and services whereby Govt. can use it with appropriate legal authority and can gain access in a readable and useable format. In view of such emerging trends the Apex court in 2018 in Tehseen Poonawalla v. Union of india[9] case, directed the govt to curb and stop explosive messages and videos on various social media platforms, which have a tendency to ignite mob violence and lynching of any kind. The court further said to frame necessary guidelines in child pornography, rape, gang rape , videos and sites in content hosting platforms and other application.   

CONCLUSION :-

We have seen debate in courts and various social media platforms. One question always comes to my mind, that debates in courts, why they are always sober compared to social media and other platforms, which are acrimonious in nature. In courts debate is purely based on law i.e. application of law with knowledge but on social media the participants are not well versed with subject resulting in bitter discussion among debaters because every one wants to force their view then embarking, without knowing the truth. This is happening because of their half baked knowledge, no accountability, on what is said. We have laws, rules and guidelines to follow but it seems every one in debate is pulling leg and create ripples either of self gain or TRP for channel. Why this is happening? We have many channels or avenues to register our voice and computation among media is cut-throat, without taking care of ‘Freedom of Expression’ and public discourse. Social media  tools like E-Mail, Facebook or YouTube and other Micro-Blogging sites have, revolutionized the way, we are getting Information and communicate or interact with each other. In relatively short time they gained popularity in terms of empowering and connecting people but at the same time created some unhealthy and destructive behaviors. Social Media a powerhouse of knowledge, Productivity and encyclopedias at the same time is addictive. Internet addiction is not listed in Mental Disorders but Internet gaming is referred in Diagnostic and statistical manual of mental disorder. If we give close look to existing I.T. laws we can find that govt has immense power to deal with security of cyber space, even though it is not enough to check contains of social media . Hence a specific committee be formed in which a Lawyer a Retd. Supreme Court Judge, IT expert, a Journalist, subject expert, be included .This committee will assist to Parliamentary Standing Committee (PSC) on I.T. and Communication to suggest new way, so that, PSC’s time will be saved and better solutions will come out in minimum time 

Thomas Jefferson, who was statesman, diplomat, Lawyer & who served as third president of united states from 1801 to 1809 said “ The press is the only tiscon of a nation. When it is completely silenced, all means of general efforts are taken away .                                                                         


[1] Bhaktivedanta Swami Prabhupada,Bhagavad Gita as it is(English),Chapter 17,verse 15.

[2] Constitution of India

[3] AIR 430, 1960 SCR (2) 375

[4] AIR 118, 1950 SCR 759

[5] AIR 554, 1960 SCR (2) 671

[6] AIR 395, 1959 SCR Supl. (1) 806

[7] Civil Appeal No. 3282 Of 2020

[8] Intermediary Guidelines and Digital Media Ethics Code 2021.

[9] WRIT PETITION (CIVIL) NO. 754 OF 2016

Author: NISHAD BARHATE,  MODERN LAW COLLEGE, PUNE         

Editor: Kanishka VaishSenior Editor, LexLife India.

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