No Legal Basis
- Several bans imposed by the government on various forms of speech in the last few months
- Critical for the court to appoint amicus curiae and intervenors who will represent the constitutional doctrine accurately
- DoT’s cavalier approach has provided the Supreme Court a demonstration of the large scale abuse of free speech
On July 31, 2015, the Department of Telecommunications issued a notification under Section 79(3)(b) of the Information Technology (IT) Act, 2000, instructing ISPs to block internet access in India to 857 websites on the grounds that they were offensive to decency and morality under Article 19(2) of the Constitution.
Subsequently, Communications and Information Technology Minister Ravi Shankar Prasad promised to withdraw the notification and issue a new notification to instruct the ISPs to monitor and restrict access to child pornography sites. Despite this dramatic climb-down under significant public pressure, it is far from clear that the future of free speech in India rests on sound legal foundations.
Several Bans
In the last few months the government has imposed several bans on various forms of speech. In December 2014, it banned 32 websites, including popular sites like Vimeo, Github and Daily Motion, under Section 69A of the IT Act. This ban was partially revoked in January 2015. In February 2015, the Central Board of Film Certification (CBFC) banned the use of swear words and phrases in films, which was revoked on July 31.
In March 2015, the CBFC banned the Universal Pictures film ‘Fifty Shades of Grey’ reversing a recent trend to use certification rather than prohibition as the chosen regulatory strategy. The same month, the documentary, ‘India’s Daughter’, was banned without clear legal justification. There has been a discernible shift in the state’s position on the contours of permissible free speech and the legitimate limitations that it may impose.
Given the executive’s new found enthusiasm to impose restraints on speech and the legislative’s acquiescence in this overreach it will be for the courts to define the future of free speech in India. Luckily, on March 24, 2015, the Supreme Court in Shreya Singhal v Union of India struck down Section 66A of the IT Act on the grounds of vagueness, over-breadth and its resulting chilling effect. The court found the provision unconstitutional.
Constitutional Validity?
However, it simultaneously upheld the constitutional validity of Sections 69A and 79 under which the current notification has been issued, for two reasons. First, that the grounds for restrictions on speech in Section 69A are accommodated by the grounds in Article 19(2) of the Constitution. Secondly, the determination of what sites need to be banned must be made by an executive authority following due process. However, the July 31 notification does not satisfy either the procedural or the substantive conditions under Sections 69A and 79 which are essential reasons for the Supreme Court’s decision to uphold these sections.
Ironically, the July 31 notification was motivated by the observations of a Supreme Court bench entertaining a PIL filed by Kamlesh Vaswani that were misunderstood to be a court order to the department to ban these sites. Irrespective of the sources and circumstances of this misunderstanding, it is essential that the bench entertaining the PIL respect and develop the Shreya Singhal precedent and compel individualised enquiry in every case. When the petitioner and the government are both over-eager to restrain speech, it is critical for the court to appoint amicus curiae and intervenors who will represent the constitutional doctrine accurately and with fidelity to constitutional values.
Notably, Vaswani’s petition and the now withdrawn government notification, both advert to the protection of decency and morality as the grounds that justify the ban on these websites. These grounds are absent from Section 69A and, hence, provide no permissible statutory basis for imposing restraints on speech. The department has no direct recourse to these grounds present in Article 19(2) as Parliament has wisely chosen to remove them from the department’s purview in the IT Act.
No Causal Relationship
Second, it is suggested that such pornographic websites cause an increase in crimes against women and children. A brief survey of the academic literature in this field across the world leads to the conclusion that it is rather difficult to prove the causal effect of pornography on crime rates.
In a recent 2014 study, by Suresh Bada Math et al analysing reported rape cases in pre- and post-liberalisation India shows that increased access to pornography in post-liberalisation India has not led to an increase in crime rates against women. Till there is a rigorous and careful assessment of this causal relationship, the court must not conclude that all pornography amounts to an incitement to a criminal offence.
DoT’s cavalier approach has provided the Supreme Court a demonstration of the large scale abuse of free speech that can originate from Sections 69A and 79 of the IT Act. In Shreya Singhal, the Court established the primacy of free speech in the Constitution by striking down Section 66A of the IT Act. It is now time for the court to close the door on the potential abuse of Sections 69A and 79 by making clear that these provisions cannot be invoked for the protection of ‘decency and morality’ or on the grounds that all pornography is an incitement to a criminal offence.
Further, the court would do well to set down a clear procedure for the application of these provisions on a case-by-case basis, following due process with transparent written reasons in each case. Then Shreya Singhal and Kamlesh Vaswani will create sound foundations for the future of free speech in India.
(The writer is a professor at the Azim Premji University and Visiting Dr B R Ambedkar Professor of Indian Constitutional Law at Columbia Law School)
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