Updated: Jul 18, 2020
This article is written by Akash Thakur, a 3rd year B.B.A LL.B student at JSS Law College, Mysore.
Freedom of speech and expression is one of the most cherished fundamental right guaranteed by our Constitution. It’s also cardinal to democracy as it includes the right to express one’s views and opinions through any means; such as by writing/word of mouth. Due to the evolution of technology and internet, social media has become the most preferred medium of expressing one’s views and sentiments, some of which may be found to be degrading, disapproving, derogatory and demeaning to certain people. However, disturbed by the rampant and continued use Section 66A of Information Technology Act even after being struck down by the Supreme Court, let’s demarcate the sphere through RJ Suchitra’s story.
Days after the custodial deaths of two traders, Jayaraj P and his son J Benicks, The Tamil Nadu Crime Branch CID (CB-CID) on 10th June 2020 asked RJ Suchitra to take down her video which highlights the custodial death of father-son duo that had gone viral through her Twitter and Instagram account, claiming many details to be incorrect. Earlier in June, police officers of Tuticorin district police picked up P Jayaraj, who ran a mobile phone repair shop with his son Benicks as the store was open beyond coronavirus lockdown curfew. When his son reached the police station, he was allegedly harassed in custody and beaten to death.
RJ Suchitra tweeted that, “The CB-CID (Crime Branch-Criminal Investigation Department) called and threatened to arrest for spreading fake news with intent to cause anarchy. I deleted the video under the advice of my lawyer, who said they are capable of doing it. Please watch this case people - there’s a lot of foul play being employed.” The CB-CID through twitter submitted their actions to be reasonable and claimed that “In the video, she falsely exaggerated and sensationalised the chain of events, and her allegations seem to be a figment of the imagination and are not backed up by any proof and the video is promoting hatred against the Police. Ms Suchitra has taken down these falsified contents on it being flagged to her.”
Henry Tiphagne, Executive Director of People’s Watch, a human rights group called the actions taken by the Police as “unacceptable” as it intimidates a journalist who reports based on information she gets. He further questioned the authority of the police officer to delete a post. When we introspect the events, the paramount contentions that arise out of such circumstances are:
Whether reporting police brutality amounts to any violation?
Did Police invoke Section 66A of IT Act, 2000, which has already been repealed?
UNCOVERING FREEDOM OF SPEECH
“The destruction of spaces for questioning and dissent destroys the basis of all growth – political, economic, cultural and social, and In this sense, dissent is a safety valve of democracy.”
- Justice D Y Chandrachud
In India, freedom of speech is not absolute and has definite and specific exceptions under Article 19(2) of the Constitution. However, the question is whether such restrictions provided under the Constitution can be extended to any level. Further, if more restrictions were to be added, it can only be done through the law, and the law must be just and reasonable. With various Supreme Court’s observation on Article 19, let’s analyse distinct perceptions to free speech.
Sakal Papers (P) Ltd. v. The Union of India, AIR 1962 SC 305.
The Hon’ble Court held that “the right to freedom of speech and expression carries with it the right to publish and circulate one’s ideas, opinions and views with complete freedom and by resorting to any available means of publication, subject again to such restrictions as could be legitimately imposed under clause (2) of Article 19.” Further, the court also held that “The correct approach in such cases should be to enquire as to what in substance is the loss or injury caused to the citizen and not merely what manner and method have been adopted by the State in placing the restriction.”
Ajay Goswami v. Union of India, AIR 2007 SC 493.
The Hon’ble Court held in that, “in order for the State to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”
Naraindas v. State of Madhya Pradesh  3 SCR 624.
The Hon’ble Court held in that, “It is our firm belief, nay, a conviction which constitutes one of the basic values of a free society to which we are wedded under our Constitution, that there must be freedom not only for the thought that we cherish, but also for the thought that we hate.”
The mandate by the CB-CID curtails the right to freedom of expression of users by mandating the removal of content just because a person or an organisation finds it not to his liking. Thus the mandate goes beyond the permissive limits to freedom of speech and expression that can be imposed by a statute. It is inferred that such order is violative of the fundamental right to freedom of speech and expression guaranteed under Article 19(1) of the Constitution of India and is liable to be struck down.
The video posted by Suchitra pointed out the circumstances in which the father-son duo was put into based on what reported by the family members against the local police officer. The Police Department cannot strike down the video as it merely intends to report their alleged abuse, which hasn’t been proven wrong yet.
UNFOLDING SECTION 66A AND DRIFTED MEDIA
The landmark case of Shreya Singhal v Union of India, (2013) 12 S.C.C. 73, plays a significant role in the Indian legal system. The case revolves around the fundamental right of freedom of speech and expression under Article 19(1)(a) of the Constitution of India, which challenged the constitutional validity of section 66A and led to the struck down of section 66A of the Information Technology Act 2000. Section 66A is the punishment for sending offensive messages through communication services, etc.
Is section 66A of the IT Act still being used to make an arrest or threat to arrest? The decision certainly expands freedom of expression by narrowly interpreting the restrictions and reasonable grounds. However, the rulings have not been appropriately implemented. The Internet Freedom Foundation published a study in November 2018 on the continued use of the section found about 65 to 70 cases cumulatively in different legal databases, and new cases were being registered, investigated, reported and after that considered by lower courts.
The patently illegal use of section 66A of the Act is not any different from the current scenario in which banks and private companies continue to demand Aadhaar as ID from citizens, despite being expressly forbidden from doing so by the Supreme Court. Time and again, there is a contradiction between freedom of speech and statements that can cause ill will, hostility, menace, etc. More often than not, Police in our country assumes arbitrary power to invade citizen’s authority as they are not merely kept to protect law and order of the state but to abuse it to their wishes and will. Roles are very definite and transparent, to take an unbiased legal decision in every matter to restore the peace in the society. In the present case, Police could instruct Suchitra to do the same by introducing her to the new finding that proved her allegations to be false but instead threatened to arrest for reporting illegal police brutality. I believe that maybe the Police tried to protect the word from spreading further so that they could quickly wrap the case stating the allegations were false, and the Robinhood of the town could still wear a shiny armour of pride and honour. In the present issue, the girl had no intention to commit any of the given misconduct mentioned in section 66A instead had questioned the Act of brutality and reporting the same as a concerned citizen through a video on her social media accounts(Instagram and Facebook). If a citizen of a democratic country does not even have the right to question what is happening in the country and whether it makes sense, then what kind of democracy are we living in and defining? Well, a report that should have been highlighted by mainstream media, which was too busy reporting graphic presentation on how China and India could possibly have a World War III, was dug up by a Radio Jockey.
In the 2017 World Press Freedom Index, India sank three places to position 136 (“least free”). The 2017 India Freedom Report, published in May by media watchdog The Hoot, spoke of “an overall sense of shrinking liberty not experienced in recent years.” It counted 54 reported attacks on journalists, at least three cases of television news channels being banned, 45 internet shutdowns, and 45 sedition cases against individuals and groups between January 2016 and April 2017.
Any form of criticism on Government and its institutions on their functioning is unwelcomed. Recently, the Government discouraged media channels from carrying “negative” stories about the pandemic - a move that is believed to have triggered self-censorship. Unchecked abuse and death threats on social media by loyalists further add to the escalating issues with free speech in India. This repression of free speech is creeping in stealthily at a time when people are too distracted by fear and uncertainty to be vigilant about rights and liberty.
It is a matter of grave concern if no official communication is issued by the Central Government and circulated to all police stations immediately after the judgment. Why should a common man who is guaranteed various fundamental rights including the Right of Freedom of Speech suffer due to ill-informed or irresponsible system which isn’t aware of the change in the legal position of a statute? It is high time that the issue is addressed and necessary steps are taken to ensure that no one suffers any police action under Section 66A of the IT Act, which was declared unconstitutional five years back.
The following measures need to be adopted to put things in order:
(i) Both police authorities and magistrates seem to be unaware. Hence, organised discussions need to take place on critical decisions of the High Court and the Supreme Court.
(ii) The Government must issue necessary advisories with immediate effect to all States/ UTs and through them to all police stations.
(iii) Wide publicity of the advisory. So, the public at large is also informed of the steps taken by the governments.
There is continued abuse of the legal system through the unconstitutional section 66A of IT Act that is existing in the system that cause harm to the individuals exercising their freedom of speech. The ineffective governance failing to implement and enforce judicial decisions is a sure example of legislative failure and executive lethargy which isn’t new to India. Further, who is to be made accountable for the agony suffered by innocent people who have been harassed by illegal laws which aren’t even in existence? With most institutions weakened and ill-equipped to check executive power, the crippling of journalistic freedom is bound to have severe repercussions on the future of democracy in India.
But more immediately, censorship of the truth puts every single citizen of the country, and eventually the whole world, at significant risk. Checks and balances on the system could quickly be taken out of the equation with no one to hold accountable for the chaos caused.
Disclaimer: The views expressed are meant purely for educational discussion of legal standpoints of a particular matter or event. It contains only general information about legal issues. It is not a legal advice and should not be treated as such.