Guest Post: Unpacking the Supreme Court’s interim order on sedition

This post is authored by Dhruv Bhatnagar

On May 11, 2022, the Supreme Court issued a consequential interim order (“Order”) in a batch of petitions challenging Section 124A of the Indian Penal Code, 1860 (“IPC”), which penalises the offence of ‘sedition’. The Order grants the Central Government time to re-examine the validity of Section 124A, and whilst this process is underway, effectively suspends the provision’s operation through these directions:

1. it is “hop[ed] and expect[ed]” that the Central and State Governments will refrain from registering fresh ‘first information reports’, continuing investigations, and taking coercive measures under Section 124A;
2. persons subsequently charged with sedition can approach courts for appropriate relief and their plea must be considered in light of the Order; and
3. pending legal proceedings relating to sedition are to be kept in abeyance. However, proceedings under other penal laws can continue if no prejudice is caused to the accused.

After briefly explaining the offence of sedition and summarising the facts leading up to the current constitutional challenges, this post analyses the Order along three lines – its impact on fundamental rights; relevance for persons facing prosecution and incarceration for sedition; and possible hurdles to its effective implementation.

Sedition explained

Section 124A is a colonial law penalising (with up to life imprisonment) expression intended to incite hatred, contempt, or disaffection against the Government established by law. This offence is cognisable and non-bailable, meaning that the accused can be arrested without a warrant and grant of bail is not automatic, but rather subject to the discretion of the presiding court. Pertinently, the offences of ‘sedition’ and ‘seditious libel’ were abolished in the UK through the Coroners and Justice Act, 2009, pursuant to recommendations by UK’s Law Commission. Similarly, in furtherance of the Australian Law Reform Commission’s recommendations, in 201o the Australian Government replaced ‘sedition’ with ‘urging violence offences’ in the nation’s federal criminal law. This reform was introduced to modernise and clarify the elements of criminal offences. Thus, although multiple common law jurisdictions have long discarded sedition from their statute books, this archaic offence unfortunately remains in the IPC nearly 75 years after India’s independence. 

Section 124A’s constitutionality was tested in 1962 by a five-judge bench (i.e., a constitution bench) of the Supreme Court in Kedar Nath Singh (analysed here). The provision was declared valid since it was enacted “in the interest of… public order” (¶26). Acknowledging that a broad (or arguably even plain) interpretation of the offence may constitute an unreasonable restriction on free speech under Article 19(2), the Supreme Court limited Section 124A’s applicability to activities inciting violence or having the “tendency to create public disorder…” (¶27). Constitutional law scholars have pointed out that the Supreme Court’s interpretation of Section 124A in Kedar Nath is inconsistent with the provision’s text, which remains overbroad. This interpretative gap has been suggested as a reason for the provision’s misapplication.

Material facts

Against the backdrop of a sharp increase in the registration of sedition cases, several petitioners, challenged the constitutionality of Section 124A before the Supreme Court in 2021. Multiple petitioners (here and here) argued that:

1. Kedar Nath was incorrectly decided because the Supreme Court overlooked the legal standard to legitimately curb speech under Article 19(2). As espoused in Ram Manohar Lohia (decided two years earlier in 1960, analysed here), this standard was a “proximate relationship” (¶13) between speech and apprehended public disorder, not a mere “tendency to create public disorder” (¶27, Kedar Nath).
2. Section 124A is inconsistent with later Supreme Court decisions on free speech, including the seminal Shreya Singhal ruling (analysed here) wherein it was held that only incitement to public disorder, and not mere advocacy or discussion a particular cause can be curbed by law.
3. Charges under section 124A have been frequently filed against journalists, politicians, and artists (among others), leading to a chilling effect on free speech.
4. Section 124A’s broadness violates India’s international law commitments, particularly under Article 19 of the ICCPR, requiring restrictions on the freedom of expression to be necessary and unambiguous.  

These petitions were heard by different three-judge benches of the Supreme Court. However, as Section 124A’s constitutionality was upheld by five judges in Kedar Nath, according to the larger bench rule, only a constitution bench having a minimum of seven judges can invalidate Section 124A after conclusively overruling Kedar Nath. Thus, the preliminary question before the bench that passed the Order, comprising of Chief Justice N.V. Ramana, Justice Surya Kant and Justice Hima Kohli, was whether to refer the present-day challenges to a larger bench. The petitions were heard over the course of about a year:

Impact on fundamental rights

The Supreme Court’s intention to prevent unjustified curtailment of fundamental rights through the frequent use of Section 124A is both laudable and clearly represented in its Order. To this end, the Court’s first direction restraining the registration of fresh sedition cases is particularly significant. However, the deferential language used here (“We hope and expect…”) leaves room for ambiguity because:

1. As pointed out by a commentator, legally even softly worded requests in judicial orders must be mandatorily followed. However, the language used in the Order may create needless confusion regarding the binding nature of the Supreme Court’s direction amongst authorities required to abide by it, potentially hampering compliance. Pertinently, despite the purpose of this direction being to restrain Section 124A’s invocation, the word ‘stay’ is conspicuously absent. This contrasts with the univocal language previously used by the Supreme Court to stay the operation of contentious farm laws. Given the significance of this direction, the Supreme Court could have phrased the Order in clearer terms.
2. Admittedly, the absence of blanket top-down directions affords the State and lower courts discretion to evaluate situations on a case-to-case basis. However, the Supreme Court’s deference towards the State in operationalising its well-intentioned directions may not be beneficial given the periodic application of Section 124A, particularly in recent years. According to the online publication Article 14, there has been a 28% increase in sedition cases between 2014 and 2020, several of which were registered simply for criticising governments and politicians.

Additionally, the Supreme Court’s failure to record detailed reasons justifying its directions dilutes the Order’s precedential value. Had the Supreme Court provided legal reasoning for arriving at its “prima facie opinion” that Section 124A was unconstitutional – such as the provision’s vagueness or incompatibility with subsequent free speech standards – the Order could have been relied upon to buttress similar arguments in cases where other ambiguous penal laws have been challenged. Absent reasons, however, the Order remains highly contextual and neither clarifies nor expands India’s free speech protections.

Admittedly, the Supreme Court’s reluctance to elaborate on its reasons in the Order may be defensible since this was only an interim pronouncement and not a final verdict that reconsidered Section 124A’s constitutionality. However, a reasoned judgment conclusively invalidating Section 124A (as opposed to a government amendment or repeal) would have had a far more enduring impact on Indian free speech jurisprudence. The benefits of such a verdict could have been considered by the Supreme Court before granting the Government’s request for time to re-evaluate the validity of this offence. In light of the Supreme Court’s observations against Section 124A in the Order, it is hoped that the Court will consider issuing a detailed judgment disposing these challenges and conclusively striking-down Section 124A, in case the provision is not repealed by the Government within a reasonable duration.

Relevance for accused persons

The Order provides a strong basis for persons facing prosecution and incarceration for sedition to seek the suspension of legal proceedings and bail. This is evidenced by the Rajasthan High Court’s order directing the state police not to investigate sedition allegations against journalist Aman Chopra because of the Order, and a similar pronouncement by the Kerala High Court staying sedition proceedings against filmmaker Aisha Sultana.

However, for those charged with other offences in addition to sedition, especially under specialised penal statutes like the Unlawful Activities (Prevention) Act, 1967 (“UAPA”), grant of bail is still subject to the stringent conditions prescribed in these statutes. For instance, under Section 43D(5) of the UAPA, bail can be denied if the presiding court is satisfied that the prosecution’s allegations are “prima facie true”. While interpreting this provision in its Watali verdict (analysed here and here), the Supreme Court prohibited a detailed examination of even the prosecution’s evidence for deciding bail pleas, making it far easier to establish a prima facie case and significantly harder for the accused to be granted bail.   

Research by Article 14 suggests that in nearly 60% of sedition cases filed between 2010 to 2020, offences from other statutes, including the UAPA and the Information Technology Act, 2000 (“IT Act”), have been invoked alongside sedition. For individuals accused of more than just sedition, including journalist Siddique Kappan who is still in jail on charges under the UAPA, suspension of sedition alone might not bring much reprieve unless it is accompanied by wider reforms or stronger protections by courts.

Challenges in implementation

For effective implementation, the Order would have to be promptly communicated to grassroots-level law enforcement authorities spanning over 16,955 police stations. This is an uphill task considering India lacks a standardised framework for communicating judicial orders on constitutional issues to concerned authorities. The lack of such a framework has been cited by digital rights advocates as the primary reason behind the repeated invocation of the unconstitutional Section 66A of the IT Act, despite its invalidation in Shreya Singhal.

Given this context, the Supreme Court should have considered developing an ad hoc mechanism for ensuring compliance with its Order. It could potentially have directed concerned governments to communicate the Order to law enforcement authorities and to file compliance affidavits. Previously, in Prakash Singh v. UoI (analysed here), the filing of such affidavits was ordered to ensure adherence to the Supreme Court’s suggested police reforms.

The Court could also have included a contempt warning in its Order against non-compliant State authorities. It has  previously done so in an order restraining coercive action by the State against persons seeking medical aid online during the second wave of the COVID-19 pandemic. Although it is settled law that contempt proceedings can be initiated by any person aggrieved by the disobedience of general directions intended at achieving constitutional goals, the inclusion of a contempt warning in the Order could have potentially ensured a stronger incentive to comply and apprised those uninitiated in the law about their right to file contempt petitions, if necessary.   

Conclusion

Although the Supreme Court’s Order will likely bring some reprieve to persons facing sedition charges, unfortunately, the Order has limited precedential value given the lack of detailed legal reasoning. Further, the Supreme Court’s direction restraining registration of fresh sedition cases, though binding, should have been worded clearly to avoid ambiguity regarding its mandatory nature. Lastly, in the absence of a framework for communicating the Order to law enforcement authorities, implementing it would be challenging. As a mitigant, petitioners may consider requesting the Supreme Court to direct concerned governments to expeditiously communicate the Order to law enforcement authorities across the country and subsequently file affidavits demonstrating compliance.

Supreme Court’s National Anthem Order: Forced Patriotism vs. Freedom of Expression

By Kasturika Kaumudi

This post discusses the Supreme Court’s order mandating playing of the national anthem in all movie theatres and the incongruities that emerge from it vis-à-vis freedom of expression. The post seeks to highlight the fundamental problem of making patriotism a forced expression.

In a widely criticized move, a Supreme Court bench ruled that it is mandatory for movie theaters to play the national anthem before the screening of every movie. The Court also cast upon all cinema goers the obligation to stand up during the national anthem in a cinema hall.

The purpose for the measure as cited by the Court was to ‘instill the feeling of committed patriotism and nationalism within one’. It is, however, difficult to understand how playing the national anthem, particularly at cinemas, which are essentially a recreational avenue, will guarantee patriotic feelings.

Patriotism and Freedom of Expression:

Patriotism is a very personal sentiment and an individual’s right to express it in her own way is ingrained in the constitutional right to freedom of expression. To fortify this argument a parallel can be drawn to the reasoning adopted by the Supreme Court in its 1986 ruling in Bijoe Emmanuel vs. State of Kerala. Here, the Apex Court had extended protection to children belonging to the Jehovah’s Witness sect, who had refused to sing the national anthem during a school assembly. The Court, while upholding the children’s right to freedom of speech and expression and right to religion categorically held, “..There is no provision of law which obliges anyone to sing the National Anthem…”

Similarly, the US Supreme Court in the landmark case of West Virginia State Board of Education vs. Barnette, held illegal a resolution that allowed schools to expel its students who refused to salute the flag and undertake the Pledge of Allegiance. The US Supreme Court held that forcing students to salute and recite the Pledge constituted compelled speech and violated the right to free speech and expression guaranteed under the First Amendment. The majority decision given by Justice Robert Jackson held,

“If there is any fixed star in our Constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. …We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”

The tenor of the order of the Indian Supreme Court implies forced patriotism, while such mandated displays of patriotism go against the very grain of freedom of expression. The Court in Excel Wear Etc. vs. Union of India held that the fundamental right under Article 19 has reciprocal rights i.e. the “right to freedom of speech includes the right not to speak and the right not to form an association is inherent in the right to form associations”. Correspondingly, the right to expression under Article 19 should also encompass within it a right not to express. The expression of patriotism should be left to an individual’s personal choice and ought not to be dictated through a decree or any other means like a government order or law. Furthermore, in this context, it is extremely pertinent to highlight Justice Jackson’s Barnette opinion on making ‘patriotic ceremonies’ a ‘compulsory routine’. He emphasizes that patriotic ceremonies should be voluntary and spontaneous instead of being a compulsory routine. To do so would be underestimating the institutions of free minds.

Constitutional Patriotism – a reasonable restriction under Article 19(2)?

In the present order, the Court seems to have sacrificed ‘individual rights’ at the altar of ‘constitutional patriotism’ when it held, “It does not allow any different notion or the perception of individual rights that have individually thought of have no space. The idea is constitutionally impermissible.” While curtailing individual rights, the Court has used terms like ‘constitutional patriotism’, ‘nationalism’ and ‘patriotism’ liberally throughout the order without enunciating the variance in their import.

It has been argued that free speech and expression can be curtailed under Article 19(2) only by an existing law or a law made by the State and no other mechanism. In the absence of any law or constitutional provision to justify its actions, the Court has resorted to ‘constitutional patriotism’ as a justification to encroach upon the freedom of speech and expression of people.

‘Constitutional Patriotism’ is a concept borrowed from German jurisprudence. It denotes allegiance to constitutional principles as a means of fostering social cohesion and dwells on developing a common identity for all citizens over their individual religion, culture, tradition etc. According to this concept, constitutional principles should serve as the binding factor and nothing else. In this context, the Court’s rationale behind making it mandatory to play the national anthem as a means to ‘instil patriotism and nationalism’ is off the mark as the national anthem, if anything, is symbolic of the nation and not of the constitution.

In Bijoe Emmanuel, the Court clearly laid down that any regulation or curtailment of free speech and expression should have statutory backing and fall under the reasonable restrictions prescribed under Article 19(2). There can be no other basis for incursion into the ambit of fundamental rights. The Court’s recourse to ‘constitutional patriotism’, an extra constitutional principle, to restrict fundamental rights without any constitutional or statutory basis, sets a very dangerous precedent.

Deeming Fundamental Duties Enforceable

The Court has taken refuge of Article 51A of the Indian Constitution to direct individuals to compulsorily stand up during the national anthem as a ‘sacred obligation’. Article 51A(a) of the Constitution only casts a duty on the citizens to ‘abide by the Constitution and respect its ideals and institutions, the national flag and the national anthem’ and does not prescribe specific standards such as being required to sing and/or stand to show respect. The Court has failed to note that though there is an inherent compulsion to comply with the fundamental duties, there is no legal sanction provided for the violation or non-performance of such duties.

Moreover, the Prevention of Insults to National Honour Act, 1971 (‘Act’) which has been referred to in the order does not mandate that a person must necessarily sing and/or stand during the national anthem. Section 3 of the Act merely criminalizes any act done intentionally to prevent the singing of, or causing disturbance during, the national anthem. By issuing the present order, the Court has effectively deemed this fundamental duty enforceable, non-compliance of which may attract contempt of Court proceedings. Furthermore, in the absence of any law prescribing punishment for not standing and/or singing the national anthem, the present order is a clear case of encroachment into the legislative domain.

As a fallout of the Supreme Court order, the Kerala police had arrested eleven people for showing disrespect to the national anthem by not standing up at an international film festival held in Thiruvananthapuram. Though the ‘accused’ were released on personal bail, they have been charged under Section 188 of the Indian Penal Code, which prescribes punishments for disobeying an order passed by a public servant.

Conclusion:

This order could spell disastrous consequences by giving teeth to self-appointed vigilantes looking to uphold the nation’s honour. There have already been several instances of such jingoism in the recent past which cause serious apprehensions regarding the enforcement and outcome of the Court order. Most recently, a paraplegic man was assaulted in a theatre in Goa for not standing up during the national anthem and a group of college students were manhandled and threatened for not standing up during the national anthem at a theatre in Chennai.

Curiously, on 2^nd December, 2016 a similar plea to make the playing of the national anthem mandatory in all Courts was rejected by the Supreme Court calling it an ‘overstretch’. Considering the interim order has been severely criticized, it will be interesting to trace the course that the matter takes on the next date of hearing which is 14^th February, 2017.

Kasturika Kaumudi is a Programme Officer with the Centre for Communication Governance at National Law University Delhi

Information Gatekeepers and Article 19(1)(a) of the Indian Constitution

I have put a draft of my paper titled ‘Gatekeeper Liability and Article 19(1)(a) of the Indian Constitution on SSRN. You can read it here. It will eventually be published in the NUJS Law Review.

Alternatively, this essay (written for a UPenn/ CIS/ ORF publication) based on the paper sets out my argument briefly.

Introduction

The press was once the most important medium of mass communication. Indira Gandhi understood this well and used the gatekeeping function of large media houses to prevent citizens from accessing critical information. The press’s function as an information gatekeeper is protected by jurisprudence, but this protection is articulated as ‘freedom of the press’, making it a medium-specific protection. As the Internet increasingly replaces the press as the most important source of information for citizens, structural protections need to extend online. The online intermediary may be the new avatar of the information gatekeeper, third parties who perform an essential function in transmitting information from speakers to audiences – they are potential choke points that the state can use to cut off flows of information.

Aside from the press freedom norms, much of our freedom of expression jurisprudence deals with the state’s relationship with the speaker. The contours of our freedom of expression rights have formed in this context. It is relatively easy for the judiciary to grasp how statutory provisions like section 66A of the Information Technology Act impact freedom of expression. Here the law targets the speaker directly and any unjust application or chilling effect is more visible. It is also more likely to be resisted by the target of regulation, since the speaker is always interested in her own right to speak.

Indirect regulation of speech is quite different. The law is aimed at information gatekeepers, who may choose not to publicise censorship and who may not be as interested in protected the speech as the original speaker. Scholars have described these gatekeepers as the ‘weakest link’, through which speech is most vulnerable to state excesses.

Information gatekeepers and Indian law

It is common enough for states to use ‘middle-men’ to enforce change in behaviour when it is difficult to control the primary offender’s conduct directly. For example, since it is difficult to directly compel minors to avoid drinking, the law targets alcohol-sellers, leveraging their gatekeeping function to cut off the supply of alcohol to minors.

Information gatekeepers were used to regulate the flow of information even in the pre-digital world. Publishers and booksellers were held liable for circulating banned publications in many countries including India. India has a particularly pernicious rule criminalizing the circulation of obscene content. This comes from the Supreme Court’s judgment in Ranjit Udeshi v. State of Maharashtra, that is well known for its interpretation of obscenity law in the context of D.H. Lawrence’s ‘Lady Chatterley’s Lover’. The other critical element of this judgment received almost no attention – the liability of a bookseller for the circulation of obscene content.

D.H. Lawrence was never prosecuted in India for his book. The ‘Lady Chatterley’s Lover’ case in the Supreme Court was about the liability of the owners of Happy Book Stall, a bookshop at which ‘Lady Chatterley’s Lover’ was sold. The Supreme Court said the booksellers were liable for circulation of the obscene content even if they argued that they were unaware that a book contained such content. Consider what this means: booksellers cannot plead ignorance of obscene content within any of the books they sell, and will be liable nonetheless. The state only has to prove that the booksellers circulated obscene content, and not that they did so knowingly. It is lucky that this part of the Supreme Court judgment went largely unnoticed since it could easily be used by the intolerant file criminal complaints that shut down large bookstores all over the country – all they need to do is look for a few books that the law would categorise as obscene. Booksellers would then have to scour every page and paragraph of each book they sell to weed it out content that might get them arrested – this would make it very difficult to do business.

Online intermediaries as information gatekeepers

Intermediary liability first received attention in India after the infamous ‘DPS-MMS’ explicit video, featuring two minors, ended up being sold on Baazee.com. The Managing Director of the company that owned the website was arrested. The fact that he had no knowledge that this content was shared on the website was irrelevant thanks to the Supreme Court’s ‘Lady Chatterley’s Lover’ verdict. This situation made it clear that if the law applicable to bookshops continued to apply to online intermediaries, online platforms would not be able to function in India. A platform like Facebook or Youtube hosts too much user content to be able to sift through it and proactively filter out everything obscene.

Fortunately, the amendment of the Information Technology Act (IT Act) gave Internet intermediaries immunity from this liability for third party content. The immunity was conditional. Intermediaries that edit or otherwise have knowledge of the content that they transmit are not immune from liability. To remain immune from liability, intermediaries must comply with certain legal obligations to take down content or block it in response to government orders or court orders. These obligations also leverage the gate-keeping function of these intermediaries to regulate online content – internet service providers and online platforms can ensure that certain kinds of content are inaccessible in India.

Why gatekeepers matter

Although information intermediaries existed in the pre-internet information ecosystem, their role is critical in the context of online content – several intermediaries mediate our access to online content. Some of these, like the gateways through which the Indian network connects to the global network, are located in India and are easy for the government to control since they are subject to onerous licenses and are few enough in number for the state to be able to control all of them successfully. Other intermediaries like Facebook or Google, are online platforms, and most of these have offices outside Indian jurisdiction.

Discussions about freedom of expression that focus on the direct relationship between the state and the speaker are not helpful in this context. This kind of reasoning tends to ignore the collateral effects of certain kinds of regulation of speech – the ‘Lady Chatterley’s Lover’ case case is a classic illustration of this with its tremendous impact on the liability of all booksellers and later on Baazee.com and other web based platforms.

As the new media make gatekeepers and intermediaries more critical to the controlling the flow of information, we need to focus on other dimensions of freedom of expression if we are ensure that effective safeguards are put in place to protect speech. Our jurisprudence on freedom of the press offers some degree of protection to newspapers so that regulation of their business structure cannot be used to influence their content, but this form of gatekeeper protection is limited to the press. There are information gatekeepers other than the press in India, and it is time that we think carefully about protecting the information ecosystem. Free speech principles need to accommodate themselves to a media ecosystem that is increasingly dependent on information gatekeepers.

Freedom of expression and access to information

It is time that our jurisprudence started focusing more on citizens’ rights to access information. Although this right that has been recognized in India, it needs to be outlined in more detail. In the well-known judgment in Shreya Singhal v. Union of India, which struck down section 66A of the Information Technology Act, the Supreme Court failed to deal with intermediary liability adequately because it did not use the lens of access to information and gatekeeper liability. Using traditional jurisprudence that focuses on the direct impact of regulation of speech, the court gave content-creators the right to a hearing and a right to appeal blocks and removals of their content wherever possible. However, it completely disregarded the rights of citizens to access online content.

The content blocking system in India makes all government blocking orders confidential. This means that when an intermediary is required to block content under the IT Act, users might imagine that the decision was a private decision made by the intermediary. Since the intermediary is unlikely to be willing to spend resources battling for the various kinds of content it hosts, any blocking process that counts on the intermediary to offer up sufficient resistance to unconstitutional blocking orders errs egregiously. The law must offer those who are actually affected – the publishers and the readers of the information – a chance to fight for content that they have the right to circulate and access. Of these, the publishers of information do have some right to make their case before the government committee making the blocking decision thanks to the Supreme Court’s decision in Shreya Singhal v. Union of India. But this judgment does nothing for citizens who could lose access to a wealth of information if the government might unreasonably blocks content created by someone in another country. The content publisher would not be in a position to defend its content in India, and citizens have not been given any avenue to defend their rights to view the content before the government committee making the decision.

The focus on access to information has been discussed many scholars, from Alexander Meiklejohn onwards. Amartya Sen has written about the salience of public discourse in a democracy. Robert Post and Jack Balkin have articulated in the detail the importance of focusing on the free flow of information or access to information, rather than on the right of individual speakers. The right we refer to as ‘freedom of expression’ is about much more than the freedom to say what one pleases. It is the foundational principle from which our rules about free flow of information have been built.

Conclusion

Section 66A was an example of what Jack Balkin characterises as ‘old school’ regulation of speech. This consists of criminal penalties, injunction and damages aimed directly at the speaker or publisher. The Supreme Court’s treatment of section 66A reflects its comfort with this form of regulation and its implications for freedom of expression.

Intermediary liability, and the use of Internet gatekeepers to control the flow of online information follows a different system: it uses control over the infrastructure or platforms of speech to exercise control over speech. Jack Balkin characterizes this as ‘new school’ regulation. Through ‘collateral censorship’, a third party is made to block or remove a primary speaker or publisher’s speech. For example, a government order or a court order requiring that certain online content be blocked, does this by requiring and internet service provider or online platform to censor the information. New school regulation works necessitates co-operation of these third party intermediaries like internet service providers and online platforms with the government, and this can be achieved by compelling them to co-operate through the law or by using softer means to co-opt them.

New school regulation must be assessed in terms of the collateral harm that it causes. It is not a question of whether online pornography should be blocked or not anymore. It is a question of whether the process used to get intermediaries to block the pornography can be abused to block constitutionally protected speech. We have already recognized the collateral effects of structural regulation in the context of press freedom, and the Supreme Court has barred certain kinds of structural interference with the media that might impact their reporting. It is time to create a version of this principle for online speech, and to think in terms of access and free flow of information.

References

Ranjit Udeshi v. State of Maharashtra

Shreya Singhal v. Union of India

Secretary, Ministry of Information & Broadcasting, Govt. of India v. Cricket Association of Bengal, (1995) 2 SCC 161.

Sakal Papers v Union of India

Amartya Sen, Idea of Justice, 321-337 (2009)

Chinmayi Arun, Gatekeeper Liability and Article 19(1)(a) of the Constitution of India, NUJS Law Review [forthcoming-2015]

Jack Balkin, ‘Old School/ New-School Speech Regulation’, 127 Harv. L. Rev. 2296

Jack Balkin, ‘The first amendment is an information policy’, Hofstra Law Review 41 (2013)

Robert Post, Participatory Democracy and Free Speech, 97 Virginia L. Rev. 3 (2011).

Seth Kreimer, Censorship by Proxy: the First Amendment, Internet Intermediaries, and the Problem of the Weakest Link, Penn Law: Legal Scholarship Repository (2006)

We are not a totalitarian state and cannot be asked to moral police: AG tells SC in the Porn Petition

The Kamlesh Vaswani matter that has asked the Court to direct the Government to block all pornography over the Internet and was used conveniently by the Government to order the disablement of over 850 website last week came up before the bench headed by the Chief Justice today.

Image: https://lmindia2.global.ssl.fastly.net/sites/lovematters_india/files/styles/medium/public/field/image/porn_dos_and_donts.jpg?itok=u2h406Wf

Mr. Mukul Rohatgi, the Attorney General of India represented the Union along with ASG Ms. Pinky Anand. He stated that after the last hearing the petitioners gave a list of 857 websites to the Government, which were blocked by the Department without any verification. Subsequently, the Department verified the list and then asked the Internet Service Providers to only block websites with child porn.

He said that if someone wants to watch porn in the confines of their bedroom how can we interfere. He subsequently stated that there are various kinds of pornography- hard-core, soft, violent porn. At this juncture the Chief Justice quipped ‘Mr. Rohatgi how do you know all this’, to which the AG replied ‘your lordship I have not watched it, but I do plan to, since that is the only way to understand the concerns, moreover my juniors are very tech savy’. He also stated that pornography is a grey area and there are no straight answers.

The AG argued that the geographical frontiers are no frontiers on the Internet and it is a borderless space, and it is very difficult to block anything on it. He said that if we block ten sites another five would pop up with new names at new locations.

He again reiterated that if someone wants to watch this in the privacy of their bedroom, the state cannot be a moral police or enter peoples bedrooms. He added that there are issues of freedom of speech and expression under article 19(1)(a) involved in the case.

The AG stated that the Government is committed to Internet freedom and has launched the ambitious Digital India project, which aims to connect crores of people to the Internet. He added that the MyGov website is becoming the converging point of lots of people to send ideas to the Government and connect with it.

He stated that the petitioner’s argument that the law as it stands today is ineffective and thus unconstitutional is not a valid argument. He cited an example of a case of customs officers in Mumbai who were booked as they were watching porn within a bungalow and the High Court acquitted them, as that is not an offence. He stated that the case is pending before the Supreme Court.

The AG submitted that there is no doubt that child porn has to be banned and the Government will make every effort to do that. However, he added that effective banning on the Internet is very difficult. He also stated that sites these days pick up profiles of the surfer and then the person gets targeted advertising, which the Government cannot block and we are not willing to take up the mantle of moral policing.

He stated that as of today our position is that child porn needs to be banned, beyond that if someone gives us a site which has child porn we will block it or block sites based on court orders as laid down in Shreya Singhal. Beyond that this issue is a larger debate, which can happen in court or outside it in Parliament or in the society.

At this point Mr. Vaswani’s lawyer, Vijay Panjwani stated that a criminal activity is a criminal activity whether in public or in private and transmission of pornography is a criminal activity, which the ISPs are doing. He added that we have the technology to block these sites, parties including people from Banaras Hindu University have filed affidavits in the case stating the same. He said that there is a seven-years imprisonment for anyone transmitting absence content under the Information Technology Act, but we are not even asking for that, we are just asking for the sites to be blocked.

The Attorney General interrupted at this point and stated that today every computer has a child/parental lock and can be used to limit children’s access to such sites and there are other softwares being developed for mobiles and other devices.

He added that the best filter is not to block this content at the gateway but if individuals want they can do it on their devices, as if two adults want to watch it for entertainment we cannot enter their houses. The AG further stated that we cannot become a totalitarian state and there is right to information and entertainment under article 19(1)(a).

Ms. Meenakshi Arora, Senior Advocate being briefed by AoR Mr. Rahul Narayan appearing for the Internet Service Providers Association of India argued that there is a conflict between the two orders issues by the DoT on 31^st July and 4^th August 2015. She added that ISPs are not responsible for the content added by intermediaries.

The first order asked ISPs to disable 857 websites, but the subsequent orders asked us to unblock 857 URLs. She stated that there is a difference between a website and a URL and added that we will block whatever we are asked to under the law and our license agreements but we need to have clear instructions regarding what needs to be blocked. The Government cannot ask us to identify and block content and that is unreasonable burden on the ISPs.

The CJI speaking for the bench stated that we have never passed any order in this case or asked for any blocking. The AG agreed with the Court and stated that since there has been no order by the Court, he will ask the Department of Telecom (DoT) and Department of Electronics and Information Technology (DeitY) to meet with ISAPI and sort out the difficulties.

The AG informed the court that they are working on some self-regulation mechanisms and requested to court to list the matter in October.

(Sarvjeet is a Senior Fellow & Project Manager at the Centre)

The PornBan debate: our archived pieces on the subject

Sadly, the debate on banning pornography has not moved very far over the last two years. Here are pieces that CCG has published on the subject over time:

1. The problem with blanket bans of  online pornography: filtering online content
2. Blocking online pornography: who should make constitutional decisions about speech
3. Porn and keyword filters, and how we will be sacrificing our public discourse (within this piece on the AIB petition)

What’s the hue & cry about Criminal Defamation?: Summary of Arguments from the Supreme Court

A Supreme Court bench of Justices Dipak Misra and Prafulla Pant is hearing a set of at least thirty petitions challenging the constitutional validity of criminal defamation (Sections 499 and 500 of IPC and section 199 of CrPC).

The summary of hearings from the first six days can be found here.

Busy Day for Free Speech in the Supreme Court: Defamation and Pornography

Image: http://www.internetlawcommentary.com/wp-content/uploads/2015/06/defame530.jpg

Subramanian Swamy v. Union of India

The Supreme Court bench of Justices Dipak Misra and Prafulla Pant today heard a bunch of almost two-dozen petitions, which challenge the constitutional validity of criminal defamation (sections 499 and 500 of the Indian Penal Code). Among the more prominent ones are petitions from Mr. Subramanian Swamy, Mr. Rahul Gandhi, Mr. Rajdeep Sardesai and Mr. Arvind Kejriwal, whose government incidentally days after him challenging the validity of criminal defamation came out with a circular “to deal with instances of defamatory imputations covered under Sec 499/500 of IPC against the CM and ministers”.

Attorney General Mr. Mukul Rohatgi and Additional Solicitor General Mr. PS Narasimha represented the Union of India. The Attorney General at the outset requested the court to refer the matter to a constitutional bench as per Article 145(3) of the Indian Constitution. The bench however did not seem very inclined and provided examples of multiple cases in the recent past including Suresh Kumar Koushal and Shreya Singhal which were decided by a two judge bench. In response the Attorney General submitted that if in other instances the correct course was not followed, that should not be a reason to not refer the matter in the present case. Mr. TR Andhyarujina, who has been appointed as an amicus in the case also supported the Attorney General’s contention. The Court has allowed the Union of India to raise this issue in their final arguments and has agreed to answer it in the final judgment.

The bench clarified that it will only be dealing with the issue of constitutionality of sections 499 and 500 of IPC and will not look into how these sections are applied. The bench also stated that it cannot abolish a provision as that is the job of the parliament, it can only look at the constitutionality of the provision.

Mr. Andhyarujina informed the court that among the various terms mentioned under Article 19(2) of the Constitution there is no judgment on the issue of defamation and what the court needs to decide is whether the right to freedom of speech and expression as guaranteed under Article 19(1)(a) is inhibited by defamation being a penal provision.

The Attorney General also dealt with the issue of criminal and civil defamation and stated that a civil suit for damages in such instances keeps pending for years and there is hardly any award provided, nor is there any deterrence effect whereas criminal provision at least has some deterrence effect. He also compared the situation to the English system and was supported by Mr. Andhyarujina and both of them stated that unlike the India system its easy to approach the civil court for damages in such cases and obtain a relief whereas in India the system should be kept in mind. However, the bench reiterated that it will only examine the constitutionality of the sections and the system that exists for civil defamation and the time taken to decide such suits will have no bearing on that.

Mr. Andhyarujina stated that theses sections are used as an inhibitor for freedom of speech and expression specially in political context, to which the court stated that different people have different views regarding the validity of the provisions under Article 19(2) including the two amicus appointed by the Court and the matter should be carefully considered.

The bench specifically asked the amicus to assist the court with two questions. Firstly, whether sections 499 and 500 can be read down if required and secondly, whether the fact that there has been a trend of some countries abolishing criminal defamation will have any impact on this court deciding the constitutional validity of a statutory provisions in light of our written and organic constitution.

The court has directed the Union of India to file a counter by 11^th July and all the petitioners to file their propositions of law by 14^th July which is the next date of hearing.

Kamlesh Vaswani v. Union of India

Image: http://i.telegraph.co.uk/multimedia/archive/03343/ChrissyChambers_En_3343155k.jpg

The Kamlesh Vaswani matter that has asked the Court to direct the Government to block all pornography over the Internet came up before the bench headed by the Chief Justice today. The petitioner stated that they have filed an affidavit highlighting the issue of revenge porn. The Court agreed with the seriousness of the matter and agreed to look at the issue of revenge porn. However, the Chief Justice refused to passed any interim order in the matter and stated that the Court cannot interfere in what adults do inside the four walls of their house and doing so may be violate of their Article 21 rights. The bench has asked the Union to file it’s reply in four weeks.

(Sarvjeet is a Project Manager & Fellow at the Centre)

Cases in which the Supreme Court will consider the validity of Criminalization of Defamation

The Supreme Court of India is currently hearing a bunch of petitions challenging the validity of Sections 499 and 500 of IPC among others.

PICTURE: http://law.famu.edu/wp-content/uploads/2015/03/defamation.jpg

The Centre for Communication Governance at National Law University, Delhi will been tracking the case and is collecting various documents relating to it.

NOTE: There are 25 petitions which have been tagged together- the latest list of petitions can be found at: https://drive.google.com/file/d/0BycAZd9M5_7NbWhubWo5eU92OTA/view?usp=sharing. 

We are in the process of finding out the details of the lawyers and other documents regarding the same.

The details and other information regarding the cases is available below. (The table is not exhaustive as we are still collecting information)

If you have any information or copy of petitions or submissions please mail them to sarvjeet.singh@nludelhi.ac.in

Name of Case	Number	Lawyers Appearing for the petitioner	Amicus	Copy of the petition	Copy of the written submission
Subramanian Swamy v. UOI, Ministry of Law & Justice & ors.	W.P. (Crl.) No. 184/2014	Mr. Subramanian Swamy (petitioner in person) Mr. G.S. Mani (Senior Advocate) Mr. A. Lakshminarayanan Mr. M. M. Kashyap	Mr. T.R. Andharujina (Senior Advocate) Mr. K. Parasaran (Senior Advocate)
Arvind Kerjiwal v. UOI, Ministry of Law & Justice & ors.	W.P. (Crl.) No. 56/2015	Dr.   Rajeev Dhavan (Senior Advocate) Ms.   Vrinda Bhandari Mr.   Chirag M. Shroff Ms.   Swati Vaibhav		Available here
Arvind Kerjiwal v. UOI & ors.	W.P. (Crl.) No. 62/2015	Mr.   Arvind P. Datar (Senior Advocate) Mr.   Guru Krishna Kumar (Senior Advocate) Mr.   Trideep Pais Mr.   Gautam
Rahul Gandhi v. UOI & ors.	W.P. (Crl.) No. 67/2015	Mr.   P.P. Rao (Senior Advocate) Mr.   Harin P. Raval (Senior Advocate) Mr.   R.S. Cheema (Senior Advocate) Ms.   Mahalakshmi Pavani (Senior Advocate) Mr.   K.C. Mittal Mr.   G. Balaji Ms.   Tarannum Cheema Mr. Nipun Saxena Mr.   Santosh Krishnan
Foundation for Media Professionals v. UOI	W.P. (Crl.) No. 106/2015	Mr. Anup Bhambhani (Senior Advocate) Mr.Dushyant Arora Ms. Mudrika Bansal Mr. Apar Gupta		Available here

Panel Discussion on ‘Intermediary Liability & Freedom of Expression in India’

Panel Discussion on ‘Intermediary Liability & Freedom of Expression in India’

6:00 p.m., 26th March 2014

Organised by

The Global Network Initiative, Washington DC

&

Centre for Communication Governance at National Law University, Delhi

at

Lecture Room – I | India International Centre Annexe | Joseph Stein Lane, Lodhi Estate, Max Muller Marg | New Delhi

The panel will focus on the Indian legal framework governing Internet platforms, especially with regard to online content and its implications for citizens rights. India has seen significant debate with respect to Internet intermediaries and the balance that should be involved in regulations affecting user-generated content. It has been argued that the current legal framework creates incentives for online intermediaries to take down content even when no substantive notice or legitimate reasons have been offered, and despite the fact that this content may actually be highly relevant for public communication and proper democratic functioning.

The panel will explore these questions in the context of the civil liberties that are key to democracy, especially free expression and privacy. It will draw connections between this ostensibly Internet-related issue, and the traditional media, tohighlight recurring issues and useful perspectives.

Welcome Address:

– Prof. (Dr.) Ranbir Singh, Vice Chancellor, NLU, Delhi

Panelists:

–       Jermyn Brooks, Outgoing Independent Chair, Global Network Initiative, Washington DC

–       Shyam Divan, Senior Advocate, Supreme Court of India

–       Siddharth Varadarajan, Journalist & Senior Fellow, Centre for Public Affairs and Critical Theory, New Delhi

Cases in which India’s Supreme Court will define contours of free speech online

Author: Nikhil Kanekal

India’s apex court is slated to decide key cases which, one way or another, will have a significant bearing on online free speech and regulation. The cases are in initial stages of hearing and will gain momentum once the court decides to hear them substantially, which, going by its procedure, will likely take some months.

Kamlesh Vaswani v. Union of India

Kamlesh Vaswani’s petition against pornography wants the court to direct the government to declare key sections of the IT Act ultra vires the constitution. He has asked for a national action plan against pornography and a separate law that will exhaustively curb ‘the growing problem of pornography’. He wants the government to insert new sections into the IT Act which will be more stringent and carry heavy penalties for creating, transmitting, storing and viewing pornography. He also asks that these be made non-bailable and cognizable offences.

The crux of the petition concerns the enforcement of an effective bar on access to pornographic content in India. This petition will need to be considered both from the perspective of the jurisprudence on obscenity and free speech, and from the perspective of how far it is possible to completely remove a category of speech/content from the Internet.  There is a range of complications associated with trying to ban content online due to the structure of the Internet. The state and its instruments are not yet sophisticated enough to filter out the narrow range of content that is legitimately banned without including material outside the ambit of illegal content. Although most stakeholders agree that child pornography must be removed from the Internet – it continues to be difficult to enforce universally, owing to the nature of the Internet.

The Rajya Sabha committee has also issued a public call for inputs on this issue.

Shreya Singhal v. Union of India

Shreya Singhal’s case was admittedly shortly after the much publicised arrest of Shaheen Dhada in Mumbai. The Supreme Court has been asked to strike down Section 66A of the Information Technology Act, 2000. This law has been adopted from a similar provision in the United Kingdom’s Communication Act, 2003. However, the Queen’s Bench Division of the High Court has read down this provision in 2012, making the UK more tolerant of free speech online.  Besides asking for Section 66A to be declared ultra vires the constitution, Singhal has requested the court to issue guidelines so that offences concerned with free speech and expression are treated as non-cognizable under criminal law, meaning that police powers are brought under safeguards on areas such as making arrests without a warrant as well as the power to investigate.

Mouthshut.com v. Union of India

The Mouthshut.com petition challenges the Information Technology (Intermediaries Guidelines) Rules, 2011 which effectively creates a notice and take down regime for third party/ user content that intermediaries host. Originally the IT Act was meant to create a safe harbour for intermediaries, to shield them from liability for third party content. This safe harbour is subject to the intermediaries meeting a ‘due diligence’ standard – the rules which were meant to explain what this standard meant, have instead created a whole liability system surrounding contexts in which intermediaries are given notice of objectionable content and do not take it down within the specified time (An academic paper on this aspect, authored by Pritika Rai Advani, is to be published soon). Although intermediaries are permitted in theory to judge content as unobjectionable, the fear of litigation has led to over compliance – this includes taking down legitimate content to avoid expensive and time-consuming law suits. The petition argues that as delegated legislation, the rules are not only unconstitutional but also  go well beyond the scope permitted by the IT Act.

Dilipkumar Tulsidas Shah vs. Union of India

Dilipkumar’s petition asks the court to pass guidelines to ensure that police officials have a standard operating procedure to deal with complaints and reports related to Section 66A and other offences listed under the Information Technology Act. Several police actions under the IT Act thus far have been inconsistent and more abuses of power. A bench comprising justices H. L. Gokhale and Jasti Chelameshwar has decided to hear the Mouthshut.com case along with Shreya Singhal’s petition and Dilipkumar Tulsidas Shah’s petition.

Rajeev Chandrashekar v. Union of India

Chandrashekar wants the court to declare section 66A of the IT Act and sections 3(2), 3(3), 3(4) and 3(7) of the IT (Intermediaries Guidelines) Rules, 2011 ultra vires the constitution. This petition is also attached to Shreya Singhal’s case.

Note: Common Cause and People’s Union for Civil Liberties (PUCL) also plan to file petitions that challenge parts of the IT Act and IT rules, and these petitions are likely to be tagged with Shreya Singhal’s case. We will provide an update about these petitions shortly. Additionally, there are some cases pending before various High Courts concerning provisions of the IT Act and Rules.