Don’t Kill Freedom Of Speech

In June 2012, I had written an article in this paper where I had pointed out the clear and present danger to our constitutional guarantee of free speech by the government’s approach to ‘managing’ the many opinions and views on the internet – through, amongst other things, a vague and draconian legal framework, the Information Technology (Intermediary Guidelines) Rules, 2011. I first raised this issue of internet censorship in Parliament in March 2011 as a Zero Hour Mention.

Along with many other Indians, I am mystified by our government’s approach both to the internet and to the millions of Indians using it. It defies logic and does not adhere to the values of our republic and democracy. Governments everywhere have the same instinctive fear of the internet– because it represents free and unfettered views, and unlike conventional media which is vulnerable to coercion, is completely unmanageable for the establishment. And that, predictably, makes governments try to fetter this free and vibrant medium; a natural instinct for those in power who fear being challenged.

This misuse of vague rules has now started coming home to roost. The Shaheen Dhada case – she was arrested along with a friend under Section 66A of the IT Act as well as other sections of the IPC on the basis of a Face book post she had made – has clearly out- raged the country. Attempts are being made, of course, to blame the local police and the complainant for such a heavy-handed action. The Maharashtra government has suspended two policemen who carried out the arrest for booking Shaheen and her friend under “wrong sections”. The judge who granted bail to the two girls has also been transferred. However, all this is missing the point.

This complaint and the complainant would not have a leg to stand on if it were not for the vagueness of the IT Rules. The basic tenet of any rule is that it should be precise in terms of the scope and action of the crime that it is to deter and punish. Failing that, laws will always be subject to interpretative action and overreach by vested interests and frivolous complainants. It is precisely in this area that the IT rules fail. They are vague and it’s not clear who they intend to punish; this can lead to tremendous amounts of discretionary power being handed to complainants and the often inexperienced policing authorities.

Given this, they represent a serious risk to our democracy and are now widely perceived as intimidation of citizens and entrepreneurs by the government, established political and business interests and religious and cultural bigots. They are also violative of the constitutional rights of the freedom of speech and expression of internet users in the country. To cite such one example of their ambiguity, they do not define the term ‘grossly harmful’. Although the IT minister believes that such terms cannot be precisely defined, the fact is that their presence gives far too much room for interpretation to the authorities.

In August 2011, my colleague in Parliament, P Rajeeve, introduced a motion to repeal these rules. At the end of a good debate on this subject, the IT minister gave an assurance that he would call a meeting of members and stakeholders and implement the consensus that emerged. The motion was negated based on that assurance. In August 2012, one year after the debate, the minister convened one meeting, but the rules remain unamended even now. This matter needs to be addressed on an urgent basis, for which I propose to file a PIL in the Supreme Court.

The dangers about the likely use of discretionary powers has been highlighted by US Supreme Court judge Harry A Blackmun who said: “By placing discretion in the hands of an official to grant or deny a licence, such a statute creates a threat of censorship that by its very existence chills free speech.” Therefore, there is no doubt in my mind, as in the minds of millions of our young country-men and women, that these rules need to be changed and reframed.

Rules are required, but they should be created through multi-stakeholder consultations. The rule-making body must have the ability to genuinely engage and accept diverse views while making guidelines. It must also be specific where restrictions on citizens are concerned in order to eliminate the possibilities of misuse.

The way forward is to have a group of experts or a committee working together to aid the IT ministry and concerned MPs in outlining how the language of the rules may be changed. Based on these discussions and drawing from the industry and our premier academic institutions experienced with questions of law, technology and regulation, such a group can work with the government to put out their final draft on the internet in a time-bound manner. This is an important process without which we will remain exactly where we are today.

So annul the current rules and replace them with a set that we as a nation can be proud of – one that is consistent with our core values of liberalism and democracy.

This article appeared in The Times Of India on November 30th, 2012