Any law, which leaves interpretation in the hands of the authority is prone to misuse. Therefore, it is imperative that when special laws are enacted to define offences and punishments, they should lay down the scope of the offence in precise terms in order to avoid misuse. Terms such as annoyance, objectionable etc. are open to interpretation since our authorities comprise of both liberal and conservative units.
The right to freedom of speech and expression guaranteed under Article 19(1)(a) can only be limited through reasonable restriction mentioned in Article 19(2). However, Article 19(2) too, is not free from interpretation. In the case of S. Ragarajan v. P. Jagjivam Ram, while interpreting Article 19(2), the Supreme Court borrowed from the American test of clear and present danger and observed: “..the commitment to freedom demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have a proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably like the equivalent of a 'spark in a power keg'”.
And yet, India witnesses arrests in several incidents under charges of S. 66A which are later found to be frivolous. This clearly proves the potential for misuse of the provisions of the existing law. Proponents of such laws would defend by asserting that there is a necessity of such laws in maintaining peace, law and order. However, as a defender of civil liberties, one would agree more to the argument that truth prevails over falsehood especially when the government does not engage in curtailing certain speech. It is valid enough to argue that truth will prevail only when every section of the society gets its voice. It is the need of the hour, for the largest democracy in the world, to make internet more democratic so as to ensure a holistic approach towards our Constitutional visions. At this juncture, the country cannot ensure access to broadband as a legal right, which Finland accomplished in 2010.[14]
Regardless of access, censorship in the Internet is more harmful than useful for Indian society as this juncture. As a maturing democracy, the government should trust its citizen with the maturity and tolerance expected of a society. Even in cases of minor conflicts, the solution of tolerance and peace should come from within the society and not as an upper-hand intervention from the state. The verdict of the Supreme Court on the constitutionality of s. 66A of the IT Act, is therefore, much awaited.
Sources
[1] National Cyber Security Policy-2013, Ministry of Communication and Technology- Department of Electronics and Information Technology, 02nd July, 2013.
[2] The Web Index is a composite measure that summarises in a single (average) number the health and social utility of the Web in various countries. The index score captures universal access, freedom and openness, relevant content and empowerment in the context of Internet.
[3] India ahead of China, Pakistan in Internet Freedom: Study, Economic Times, November 22nd, 2013 available online at http://articles.economictimes.indiatimes.com/2013-11-22/news/44365848_1_internet-freedom-china-and-pakistan-openness.
[4] Google asks India to embrace transparency in Internet Use, India Today, November 20th, 2013 available online at http://indiatoday.intoday.in/story/google-internet-eric-schimdt-internet-freedom-corruption-transparency/1/325706.html
[5] http://www.indianexpress.com/news/two-girls-arrested-for-facebook-post-questioning-bal-thackeray-shutdown-of-mumbai-get-bail/1033177/
[6] Pranesh Prakash, Arbitrary Arrest for Comment on Bal Thackrey’s Death, Centre for Internet & Society, November 19th, 2012 available online at http://cis-india.org/internet-governance/blog/bal-thackeray-comment-arbitrary-arrest-295A-66A
[7] Petition (Crl.) No. 167 of 2012
[8] Available online at http://blogs.lse.ac.uk/indiaatlse/2013/01/30/lawrence-liang/
[9] Ajay Goswami v. Union of India (2007) 1 SCC 143: MANU/SC/5585/2006
[10] Supra note 4 at para 5 (as per Manupatra citation)
[11] Supra note 4 at para 5
[12] Supra note 4 at Para 36
[13] Supra note 4 at para 47.
[14] Madhavi Goradia Divan, Facets of Media Law, Eastern Book Company, 2nd Edition, 2013 at p. 33