Issue of Censorship in India

Issue of Censorship has worried citizens, free speech supporters, civil rights organizations and libertarian organizations all over the world. It is also widely debated and discussed in India, where governments over the years have tried to censor free speech and free flow of information. Right to freedom of speech and expression, which is a fundamental right under Part… Read More »

Update: 2020-05-13 20:55 GMT

Issue of Censorship has worried citizens, free speech supporters, civil rights organizations and libertarian organizations all over the world. It is also widely debated and discussed in India, where governments over the years have tried to censor free speech and free flow of information. Right to freedom of speech and expression, which is a fundamental right under Part III, Article 19(1)(a) of the constitution, has been upheld as a basic right by the Supreme Court of India in various judgments.

Multiple attempts by the governments to censor speech have also been read down by the Apex Court of the country, e.g. 66A of the Information Technology Act, 2000, which was declared unconstitutional in 2015 in the case of Shreya Singhal v. Union of India. But there still exist provisions in Indian Penal Code, 1860, IT Act, 2000, Official Secrets Act, 1923 etc. which are being used to silence dissent and free speech. This article discusses the issue of internet censorship in depth.

I. Freedom of Speech and Expression

Freedom of Speech and Expression is recognized as one of the basic rights of a human being under various International conventions and treaties. Article 19 of the Universal Declaration Of Human Rights (1948) clearly states, “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.” Similarly, Article 19 of the International Covenant On Civil And Political Rights recognizes the right to hold opinions without interference.

It is also recognized by legal systems of various countries such as The United States of America, The United Kingdom, Switzerland, Sweden etc. The Preamble to the Constitution of India clearly states that India is a democratic republic, and one of the cardinal values of democracy is the liberty of thought and expression. Under our constitutional scheme, Freedom of Speech and Expression is a fundamental right that has been guaranteed to the citizens of India by Article 19(1)(a) of the Constitution of India.

The Supreme Court of India has also time and again iterated the importance of freedom of speech and expression in various judgments. One of the earliest case laws on the liberty of speech and expression is Romesh Thappar v. State of Madras[1], in which the Apex Court held that freedom of speech lay at the foundation of all democratic organizations. The right, even though not absolute in nature, needs to be encouraged and used by the citizens of a democracy. From the basic right of speech and expression, many other important rights such as the right to freedom of the press, right to information, right to internet access etc. have branched off.

The right under Article 19(1)(a) is not absolute in nature and is subject to “reasonable restrictions” which are laid under Article 19(2). Clause 2 of Article 19 states:

“Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the 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.”

The reasonable restriction clause which was introduced in 1951 lays down six grounds on which freedom of speech and expression can be curtailed. These are sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, to contempt of court, and defamation or incitement to an offence.

The phrase “reasonable restriction” connotes that the limitation imposed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public.[2] And these restrictions have been used by different governments time and again to introduce legislation curbing free speech and expression. One such recent example is the amendment that was introduced in 2019 to The Unlawful Activities (Prevention) Act, 1967. The most significant change brought about by the Amendment was that it altered Section 35 and gave the Central Government the power to notify an individual as a ‘terrorist’ under Schedule IV of the Act. Prior to the Amendment, only organizations could have been designated this way and individuals were not covered.[3]

The constitutionality of this amendment has been challenged in the case of Sajal Awasthi v. Union of India[4] and is yet to be decided by Supreme Court of India. This is not the first time the constitutionality of UAPA, 1967 has been challenged. The Court in the case of Sri Indra Das v. State of Assam[5]held sections Section 3(5) of TADA and Section 10 of UAPA as a violation of Article 19 and 21. Both of these sections criminalized membership of banned organizations. This judgment was in consonance with the case of Arup Bhuyan v. State Of Assam[6], where the Court held that “mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence.”

II. The Internet and the Issue of Internet Censorship in India

World Wide Web(WWW) was first proposed on a document named “Information Management: A Proposal” in March of 1989 by Sir Tim Berners-Lee, a computer scientist in a physics laboratory.[7]The first web page was published at the end of 1990, upon which, the WWW was open to a select few outside of the laboratory. The importance of free access to such technology was a crucial part of the widespread creative use of the internet. In today’s time, the Internet is one of the driving force of the global economy.

Globalization is at its peak with a barrage of increasing active users every year. With the increase in active internet users, policies around the world are evolving. With the introduction of the internet and its easy accessibility to the common population, the right to freedom of speech and expression has widened. It has also brought the world closer by reducing communication barriers, which has consequently resulted in an increased flow of information. India has the second-highest internet users in the world, following China. While the WWW opens up a plethora of possibilities, it comes with a certain quirks and watch-outs in some countries.

Freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19 (2) of the constitution.[8] Internet censorship is taken seriously by the Indian government at the state and national level.

Cyber censorship was first officialized when the Parliament established the Information Technology (IT) act that laid down a foundation and a legal framework to regulate the use of the internet for communication, trade, security and hacking. The objective of the Act is to “to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as ―electronic commerce‖, which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Banker’s Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto.”

But by introducing various amendments and multiple rules under the Act, the government has successfully censored speech, expression and free flow and exchange of information. In 2008, an amendment to the Act gave power to the government to block content where it believes that such censorship is “in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above”.

Section 66A which was introduced via Information Technology (Amendment) Act, 2008 prohibited sending offensive messages online. This section was read down by the Supreme Court in the landmark judgment of Shreya Singhal v. Union of India[9] on the ground of violating 19(1)(a) entirely and did not pass the test of reasonable restrictions under Article 19(2).

The Court found out that Section 66A was capable of curbing speech and expression directly as it failed to differentiate “between mere discussion or advocacy of a particular point of view, which may be annoying or inconvenient or grossly offensive to some and incitement by which such words lead to an imminent causal connection with public disorder, security of State etc.”

The argument that the Section would be used to protect public order was also dismissed by the Court. The issue of the Section 66A causing a chilling effect on the speech was also addressed by the Court, and it was found out the Section did attempt to chill or freeze free speech as it failed to lay down a definition for terms such as ‘annoyance’, ‘offensive’, ‘inconvenience’ etc. and Section 66A was “cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net.”

In 2019, a new petition was filed in the Supreme Court regarding the improper implementation of the Shreya Singhal v. Union of India. A study, titled ‘Section 66A and other legal zombies’, published by The Internet Freedom Foundation in 2018 revealed that Section 66A was still being used in FIRs even after it being declared unconstitutional. “It results in an illegal and unconscionable deprivation of liberty, incurs wasteful costs on the public exchequer, and clogs up a criminal justice system besieged with lack of policing resources and case pendency.”[10] According to a news report published on the Hindustan Times’ website[11] in 2017, a 22 year old Rahat Khan was booked under Section 66A of the IT Act, 2000 and 153A of the Indian Penal Code after posting a morphed picture of CM Yogi Adityanath with an insulting caption on his on Facebook wall.

In 2018, the Government had released the Information Technology [Intermediary Guidelines (Amendment) Rules], 2018 (“Draft Guidelines”)[12]. These draft guidelines proposed increased due diligence standards to be observed by the intermediaries. Under these guidelines, the scope of prohibited content was expanded to include content that promoted tobacco or intoxicant substances, and also the content which “threatens critical information infrastructure”. These draft guidelines also proposed to introduce the clause requiring mandatory assistance to “within 72 hours of communication, provide such information or assistance as asked for by any government agency or assistance concerning security of the State or cyber security; or investigation or detection or prosecution or prevention of offence(s); protective or cyber security and matters connected with or incidental thereto.”

Another proposed change in the guidelines is the take-down requirement, according to which

“the intermediary upon receiving actual knowledge in the form of a court order, or on being notified by the appropriate Government or its agency under section 79(3)(b) of Act shall remove or disable access to that unlawful acts relatable to Article 19(2) of the Constitution of India such as in the 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, on its computer resource without vitiating the evidence in any manner, as far as possible immediately, but in no case later than twenty-four hours in accordance with sub-rule (6) of Rule 3.”

The introduction of such wide-worded and vague provisions can easily rope in the innocent and the critiques of the government and its policies. In 2016, Human Rights Watch released a report which documented “examples of the ways in which vague or overbroad laws are used to stifle political dissent, harass journalists, restrict activities by nongovernmental organizations, arbitrarily block Internet sites or take down content, and target religious minorities and marginalized communities, such as Dalits.”[13]

According to the report, “laws to regulate social media, such as India’s Information Technology Act, can and do easily become tools to criminalize speech, often to protect powerful political figures. Section 66A of that act, which criminalizes a broad range of speech, has been repeatedly used to arrest those who criticize the authorities and to censor content.”[14]

III. Conclusion: Censorship in India

With the increased number of means of expressions, the restrictions on the free flow of speech have also increased. Censorship or chilling effect exists even in the absence of legal prosecution. This comes into the picture when people choose to self-censor their speech, i.e., they choose not to express their opinions due to the fear of being prosecuted or being a target of “heckler’s veto”. In several cases, when interest groups that claim to be offended by books, movies, or works of art pushed for censorship or harassed authors, the government has allowed them a “heckler’s veto” rather than protecting those under attack.[15] Stringent legal censorship also with the passage of time promotes intolerance to a scale where it is not only imposed by court decrees but physical violence.[16]

Justice Jackson in the case of American Communications Association v. Douds[17] had observed that “thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored.” India being a democratic republic needs to frame policies by engaging stakeholders from diverse fields, including think-tanks, NGOs and individuals. Because if this continues to go on, the very core of democracy would be hampered, slowly fading away from our democracy to Orwell’s Oceania, and thus turning his fiction 1984 into reality.

By: Garima Saxena

[1] (1950) S.C.R. 594.

[2] Chintaman Rao v. The State of Madhya Pradesh, (1950) S.C.R. 759.

[3] Constitutionality of UAPA Amendment, Supreme Court Observer, (May 12, 2020) https://www.scobserver.in/court-case/association-for-protection-of-civil-rights-v-union-of-india.

[4] WP (C) 1076/2019.

[5] (2011) 3 SCC 380.

[6] (2011) 3 SCC 377.

[7] (May 12, 2020), https://www.w3.org/People/Berners-Lee/.

[8]Anuradha Bhasin v. Union of India, [WP(C) 1031/2019].

[9](2013) 12 SCC 73.

[10] Abhinav Sekhri & Apar Gupta Section 66A and other legal zombies, (May 13, 2020), https://docs.google.com/document/d/1ApcpuX6p8slqGgrTGXhvEI4YD3r8KwxmKRpvTR3L2bA/edit.

[11]Vipin, Offensive Facebook post on Yogi: Rahat Khan’s bail plea will be heard on Monday, Hindustan Times, (May 13, 2020), https://www.hindustantimes.com/noida/offensive-facebook-post-on-yogi-rahat-khan-s-bail-plea-will-be-heard-on-monday/story-PBQD9y05GB9iXui2veWYgJ.html.