Blocking Criticism of SC, Parliament is a Dangerous Path to Take
SC wants to stop circulation of ‘derogatory comments’ about institutions, but this would be illegal, say experts
“There are instances where institutions like Parliament and Supreme Court are defamed with derogatory comments. Why should it not be explored how to stop circulation of such comments?”CJI SA Bobde
After asking this question, Chief Justice of India SA Bobde on Tuesday, 11 February, asked a wide-ranging group of stakeholders, including the central government, social media platforms, as well as NGOs and activists, to think of solutions to stop the spread of ‘derogatory comments’ online against institutions like the Supreme Court and Parliament, according to The Times of India.
The judges made this suggestion in a case that originated with a letter by NGO ‘Prajwala’ back in 2015, which had drawn the court’s attention to the availability of child pornography and videos of sexual assault and rape on the internet and social media.
The bench, comprising CJI Bobde along with Justices BR Gavai and Surya Kant, had been hearing from advocate Aparna Bhat (on behalf of Prajwala) about how the Ministry of Home Affairs had not been conducting meetings to formulate guidelines and SOPs for elimination of this kind of content, despite previous directions from the apex court to do so.
Bhat also drew the attention of the judges to the recent phenomenon of revenge pornography – where people share intimate pictures and videos of former lovers – as an example of the kind of content that needed urgent attention, given the damage it can do to a person’s reputation.
It was reported at this time that the judges made their observations about the danger of ‘derogatory comments’ about democratic institutions, and asked the lawyers present for the parties as well as amicus curiae to look into the matter.
Senior advocate Kapil Sibal, appearing for one of the social media companies, agreed with the CJI, while Solicitor General Tushar Mehta said this could be discussed with the other parties to the case, including the amicus assisting the court on the case, NS Nappinai.
While the parties to the case seem happy enough with the court’s suggestion, there are some serious questions to be asked about the approach the court is taking. After all, criticism of the judiciary or of Parliament is not illegal, as long as it complies with any of the reasonable restrictions in Article 19(2) of the Constitution.
Both institutions also clearly have a power to punish contempt of them – false or malicious statements which can affect functioning of the institution – and there are also the general remedies of civil and criminal defamation where applicable, so why there is a need for this new mechanism is unclear.
Instead, the idea of trying to create a shield against such comments, to prevent their circulation online, starts to run the risk of becoming in-built censorship of free speech.
So, should Indian internet users be concerned about this development?
And with the mooted intermediary guidelines also seeking to put responsibilities on internet service providers and platforms to block offensive speech, is India beginning to turn towards a Chinese-style system of internet restrictions?
The Quint spoke to several experts in the fields of internet governance and policy, to understand why the direction being taken by the court is concerning.
Pre-Censorship, Chilling of Speech and Technology’s Limitations
“The comments while vague (and not part of final order) are nonetheless problematic for freedom of expression in India,” says Sarvjeet Singh, Executive Director at the Centre for Communication Governance.
He points out that there is actually a higher standard for what amounts to defamation when it comes to higher officials, and “irrespective it needs to be proved through a proper judicial process that the content is defamatory before it is blocked or taken down.”
Singh also points out that prior restrictions on someone’s free speech are not legal in India.
“Any pre-censorship by private bodies will be unconstitutional and the kind of measures suggested to filter speech will be overboard and censor legitimate expression.”Sarvjeet Singh, Executive Director, CCG
Apar Gupta, Executive Director of the Internet Freedom Foundation, also believes that the suggestion to develop some technical or automated measure will “lead to over-broad takedowns and chill public debate”, which the Supreme Court itself has previously held to be illegal.
This isn’t just a problem of principle, but one that arises because of the limitations of using technology for a process which normally involves the assessment of a person, and that too a person with legal expertise, he explains:
“Any technical measure will not be able to meaningfully distinguish between the legality of speech (not only because there is a lack of underlying legal basis) but also because technical measures lack the sophistication to determine context in speech.”Apar Gupta, Executive Director, IFF
That technology does not offer an effective solution to this problem is also a view echoed by Udbhav Tiwari, Public Policy Advisor at Mozilla, who argues that “effective proactive monitoring and automated filtering of defamatory remarks is impossible in the current state of technology.”
Even if the technology were to eventually be developed, Tiwari suggests that this would be difficult for small tech players to implement because of costs, which would place them at a disadvantage – and this is without even acknowledging the risks of the whole exercise failing foul of the law against censorship in India.
“It is vital that obligations on internet platforms are placed with due regard to a level playing field for both big and small players alike while upholding the principal of freedom of expression present in the Indian Constitution and cemented by the Supreme Court in the Shreya Singhal case.”Udbhav Tiwari, Public Policy Advisor, Mozilla
In the Shreya Singhal case, the Supreme Court of India struck down Section 66A of the Information Technology Act 2000, which made the publication of offensive comments illegal, on the grounds that it was so vague and unclear that it had a chilling effect on free speech and was an unconstitutional restriction on people’s fundamental rights.
Should Indians be Concerned About the Ramifications of This Case?
Apar Gupta, who was one of the lawyers who worked on that case, is also of the opinion that the Supreme Court is going beyond the scope of the case before it – dealing with child pornography and rape videos – and the scope of what it can do in such circumstances.
“The court or Parliament is a public institution and if there is a lack of a clear ground to impose restrictions the court cannot fashion it in a PIL. Further, the Supreme Court in this specific case is veering away from the limited issue that gave rise to this case and related to non-consensual sexual imagery and videos. This is an over-reach of the PIL jurisdiction.”Apar Gupta, Executive Director, IFF
While this is concerning, Gupta says Indian citizens shouldn’t be worried just yet about Chinese-style censorship in India from this specific case. At the same time, he does suggest that this case should be scrutinised and watched closely as it is proposing technology-based censorial mechanisms, ostensibly for dealing with illegal forms of pornography, which it also wants to use for other purposes as well.
And this isn’t an isolated example.
“A collective reading of several policy documents shows an instinct for public officials to contour online commentary and criticism,” he warns.
With the case set to be heard again in four weeks, after consultations between stakeholders on the way forward, it is important therefore to keep track of the direction the case takes and how it will impact citizen’s ability to criticise public institutions and hold them to account.
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