Digital Speech and Expression – Virtual Strings in Shaping Reality: Himanshu Gupta & Srishti Sarraf

Digital Speech and Expression: Virtual Strings in Shaping Reality.[1]

Author: Himanshu Gupta

Co-Author: Srishti Sarraf

CNLU, Patna

ISSN: 2582-3655

Abstract

Though India is a democratic republic and the Constitution of India recognizes the Right to freedom of speech & expression still the extent of this freedom so provided to the citizens is very dicey. The very reason behind this is the use of a number of penal provisions on the ground of reasonable restriction by the government & its other officials to suppress the voices, not in tune with their policies. The list of these draconian laws is also very extensive. However, this particular article highlights the major among them often use as the tool to stifle dissent known as Sedition.

‘Reasonable Restriction’ is a constitutional safeguard against arbitrary encroachment by the state. Beyond these, we will understand what mechanisms have been resorted to for protection against non-state entities. Also, we will explore how the right guaranteed under Article 19(1)(a)  has become a tool of digging one’s own grave in manners that we neither understand nor recognize. How exercise of these rights has rights taken shape of brainwashing people by undemocratic organizations by allegedly playing a significant role in the election process of some countries.

Introduction

Frederick Douglass very rightly commented, ‘to suppress free speech is a double wrong; it violates the rights of the hearer as well as those of the speaker.’

Liberty is the basic condition of existence as well as development of entire human race. As reflected from the above quote, it is the liberty to know and to express that rules over all other liberties. Acknowledging this as the mother of all other liberties the framers of our constitution provided for a right with utmost emphasis called “right to freedom of speech & expression”. Enshrined under Article 19 (1) (a). It was put under the Fundamental Rights section in part 3 of the Constitution of India. The use of the word “freedom” attached with this particular right highlights its significance furthermore. In fact, the Preamble of the constitution recognizes the security of this right as one of the objective of the enforcement of law & order reflected from this very line- Liberty of thoughts, expression, belief, faith & worship”. It shows the significance this right holds.

Article 19 (1)(a) : Right to Freedom of Speech & Expression- Meaning & Scope

This article includes the right to express, communicate & circulate one’s opinion & notions at any issue through any medium such as by way of words or gesture through various forms like speech, writing, painting, films, photographs, dancing, singing, interviewing someone, etc.

However, the scope of this right is just not limited to these. It is worth mentioning here that, these rights have been advisedly set out in broad terms leaving scope for their expansion and adaptation, through interpretation, to the changing needs and evolving notions of a free society.[i] Meaning thereby that there are so many rights that got blanket protection of Article 19 (1) (a).

Various rights such as the right to silence, right to receive information, the freedom of the press, right to know, right to educate & be educated, advertisement, Peaceful & non-violent picketing, demonstration & strike, telecasting & even voting obtain its origin from the right to freedom of speech & expression.

Right to freedom of speech & expression- Significance & Relevance in Democracy

In a democratic setup, the relevance & significance of the freedom of expression increases furthermore.  Recognizing this, from time immemorial while interpreting this article, the apex court has taken a hardcore stand in its favour. And not just very zealously guarded it but also emphasized & expanded its horizon by its liberal interpretation.

Free speech is a constructive element of democratic government because the essence of democracy lies in the multiplicity of voice, debates, diversity of idea & opinion formation. The role of public communication within a democracy is of paramount importance as the primacy of speech is inherent in any democratic constitutional order. As even the justice of the U.S, Benjamin Cardozo once stated that free speech is ‘the matrix, the indispensable condition of nearly every other form of freedom.’ Acknowledging that free speech has a structural implementation in a democracy it becomes important to provide for the positive orders & its protection from unnecessary restrictions. Hence, on one hand, as positive order, the provision of the right to freedom of speech & expression is included in our constitution. On the other hand to secure this right,   various tests laid down for putting reasonable restrictions on this freedom.

Freedom Against State : Why not non-state actors ?

As soon as we are born there exists an implied contract between state and the citizens’ and ‘persons’. Part III of the Constitution is a standard form contract between the state and its’ subjects. At the time of incorporation, these rights were being mainly derived from the Universal Declaration of Human Rights,1948, and were protected mainly against the arbitrary action of the state excesses as the mighty state with all its institutions and mechanisms had the prowess to possibly encroach over these rights.

Today we need to reconsider the scope of Article 12 which defines ‘State’ and go beyond the letters to understand as to why it was defined in the chapter of fundamental rights. The state while legislating may pass ordinances, legislations, etc.  which when challenged must stand the test of judicial review and hence these rights remain guaranteed.

Non-State Actors : Too Sacrosanct to infringe Rights?

“Rightness of limitation is essential for growth of reality. Unlimited possibility and abstract creativity can procure nothing.”- Alfred North Whitehead

A plethora of Supreme Court’s Judgements has come in the light of ‘sacrosanct’ state infringing fundamental rights. Let us discuss them one by one:

Reasonable restrictions : No rules can be absolute and the right to freedom of speech and expression is no exception. To limit the excessive power attached to this right certain ‘reasonable restrictions’ are mentioned in clause 2 of Article 19. The article provide that restrictions can be put ‘in the interest of the security of the State, friendly relations with foreign States, public order, decency, morality, sovereignty and integrity of India, or in relation to contempt of court, defamation or incitement to an offence.’ The notable point here is the use of the phrase “in the interest” as it includes both actual as well as a potential harm. However, the analysis of these restrictions reflects two major reasons for such restriction. The first is to protect & secure the dignity of individuals as well as the nation. The second is to maintain and to secure public order & peace.

Undefined: Hence, this right is liable to be controlled, curtailed and regulated to some extent by laws made by Parliament or the State Legislatures like any other right. However, it should be noted that every new piece of law or every legislature likely to curtail the power bestowed by this right need to pass the test of reasonability. The term “reasonability” has no exact and definite meaning. It is a matter of facts & circumstances which varies from one case to another. However, it is a settled proposition that all the aspects procedural & substantive of any legislation would be taken into consideration while determining the reasonability. Apart from this, duration & extent of restriction imposed, the underlying purpose, the urgency & the condition prevailing at the time are also remarkable aspects to be taken into consideration.

Another notable point is that while adjudging any legislature on the parameter of reasonableness, its effect is always given preference over its subject matter. It suggests that if no restriction appears in the content of any legislature but its effect is capable of curtailing the power conferred by the right to freedom of speech & expression or any such fundamental right, such legislature should be considered invalid. The reasoning behind this is that the indirect infringement of any fundamental right is also not justified. Though, the effect test is considered to be a preferable test still very often the directness & indirectness of the effect appears to be the matter of judicial opinion.

Guidelines of the Apex Court : With respect to the reasonableness, very broad & elaborative guidelines are given in the celebrated judgment of Papnasam Labour Union v. Madura Coat Ltd.[ii] by honorable Supreme Court which draws attention towards following notable key points:

  1. The restriction must not be arbitrary or of an excessive nature so as to go beyond the requirement of felt need of the society and object sought to be achieved.
  2.  There must be a direct and proximate nexus or a reasonable connection between the restriction imposed and the object sought to be achieved.
  3.   No abstract or fixed principle can be laid down which may have universal application in all cases. Such consideration on the question of qualify of reasonableness, therefore, is expected to vary from case to case.
  4.  In interpreting constitutional provisions, the Court should be alive to the felt need of the society and complex issues facing the people which the legislature intends to solve through effective legislation.
  5. In appreciating such problems and felt need of the society the judicial approach must necessarily be dynamic, pragmatic and elastic.
  6.   It is imperative that for consideration of reasonableness of restriction imposed by a statute, the Court should examine whether the social control as envisaged in Art. 19 is being effectuated by the restriction imposed on the Fundamental Right.
  7. The Rights guaranteed to a citizen by Art. 19 do not confer any absolute or unconditional right. Each Right is subject to reasonable restriction which the legislature may impose in public interest. It is therefore necessary to examine whether such restriction is meant to protect social welfare satisfying the need of prevailing social values.
  8. The reasonableness has got to be tested both from the procedural and substantive aspects. It should not be bound by procedural perniciousness or jurisprudence of remedies.
  9.  A restriction imposed on a Fundamental Right guaranteed by Art. 19 must not be arbitrary, unbridled, unanalyzed and excessive and also not unreasonably discriminatory. Ex-hypothesis, therefore, a restriction to be reasonable must also be consistent with Art. 14 of the Constitution.
  10. In judging the reasonableness of the restriction imposed under Art. 19(6), the Court has to bear in mind Directive Principles of State Policy.
  11. Ordinarily, any restriction so imposed which has the effect of promoting or effectuating a Directive Principle can be presumed to be reasonable restriction in public interest.

The analysis of the above highlights the point that overall the restriction imposed should not be arbitrary in nature in any way. It must have proper reasoning, nexus, and requirement. It must be proportionate & must not be excess than what is required. Also, while adjudging the reasonableness the judiciary should take up the protective approach in favour of the freedom to speech & expression.

It is important to note here the authority to impose any restriction is not with any administrative or departmental institution rather it lies only with the law. Meaning thereby, that no restriction can be imposed otherwise the ‘due process of law’. Another notable aspect here is, that in cases where the validity of any particular legislature has challenged the onus of proof shifts to the respondent state if on prima facie it looks contradictory.                           

Red Alert: The non-state actors and other non-sovereign authorities, transnational organizations have become gigantic as they operate on a global level and even some of their turnover is much more than some country’s GDP. In such circumstances, the might and possibility of encroachment by them of our fundamental rights cannot be put at bay.

Before moving further few comments by the renowned personalities in this context are important & should be taken into consideration.

  • Mahatma Gandhi called it “the prince among the political sections of the IPC designed to suppress the liberty of the citizens.”
  • Jawaharlal Nehru called it “obnoxious & highly objectable.”
  • After abolition of Sedition in U.K, Claire Ward, the parliamentary Under Secretary of State at the Ministry of Justice stated- “Sedition & seditious & defamatory libel are arcane offences- from a bygone era when freedom of expression wasn’t seen as the right it is today…. The existence of these obsolete in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom…..Abolishing these offences will allow the UK to take a lead in challenging similar laws in other countries, where they are used to suppress free speech.
  • Justice Reddy in this regard recently commented “this is totally unacceptable. Liberal constitutional democracy is in peril. The time has come for the judiciary to step in and counter this trend.”

        Some Considerable Facts & Observations’:

  1. It is in contravention of Human Rights Law & other international laws protecting free speech.
  2. It is a pre-independence law, a colonial law, originated from BRITAIN originally designed to protect the crown & govt. from any political uprising.
  3. The section is vaguely worded in its language.  Hence, often misunderstood & misused to suppress dissent.
  4. The punishment is harsh & non- proportionate as provides for imprisonment from the term of 3 year to lifetime.
  5. The process itself is extreme in nature as it requires for attending proceedings, presence for investigation straight from the time of filling of charge-sheet till the case is closed. Also, non-bailable offence & the accused can’t even apply for Govt. Job ever & have to live without passport.
  6. Abolished in Britain in the year 2009 & modified in Australia in the year 2006 as well.
  7. Nowhere, in the definition the term “public order” is mentioned in the definition of Section 124(A).

In the context of this law, most remarkable fact to note is that technically one can be a book under this section only in cases of ‘ revolt against state’ & ‘ any direct incitement to violence’. However, the term ‘state’ just not mean the office-bearers rather it refers to all the constitutional schemes along with the citizens. There exists a line of demarcation between “hatred speeches” & “sedition.” Criticism against government policies & expressions of dissent does not amount to sedition at all. However, in practicality what happens is that everyday journalists, activists, human rights defender & all most everyone who express their dissent against the power-holders. The number of citizens booked under this section in the protest against CAA is the burning example.

Another, thing to be noted here is that most of the time these are the police-officers & local leaders who misused this law targeting marginalized communities.  Though in such cases the number of convicts is minimal as mentioned above the process in itself is so technical & harsh that it is sufficient to develop a sense of fear in the minds of the commoners & infringe their freedom of speech.

Another factor that needs to be highlighted here is the division in the judgments of various courts in this regard. On one hand, where the apex court tries to protect the right of freedom of speech & expression and expand its ambit, on the other hand, this tendency is rarely seen very frequently.  As a result, the conflict arises and the judiciary is seen divided in its opinion. The best example in this line is the judgment given in the landmark cases of KEDAR NARTH SINGH V. STATE OF BIHAR[iii]  by the honorable Supreme Court, in the year 1926 where the sedition law was upheld but the terms in which it was interpreted is not followed at present.

In the wake of the above stated facts & observations it is beyond doubts to say that in the present scenario Sedition is used as the sword on the name of reasonable restriction to attack dissent which is indeed unjustified. It is high time for the lawmakers to review such laws & discard them as early as possible. The role of judiciary is also very prominent in this regard in order to address the existing systematic flaws & to ensure restriction on their misuse.

Whether non-state actors cannot encroach fundamental rights?

In what ways our fundamental rights encroach? Whether there exists a possibility of the existence of some other manner by non-state actors that do not invoke legal action currently or which is beyond the understanding of ordinary men as such methodologies are still not recognized or they are too unusual to be understood.

Today the form of expression besides being vocal is also digital on various platforms most commonly being Facebook, WhatsApp, Instagram, Snap Chat, and Tik-Tok, etc. We create videos, express our views on social media platforms, write personal messages. But all this goes on the record. The concept of ‘Data’ as a part of human rights cannot be overlooked. The right to speech and expression which is perceived as essential to life and is sine qua non for a dignified life. It governs individuality in one form and is an imperative part of democratic governance in the form of media rights in another.

These valuable data when compiled and analyzed has the capability of defining our personality. Hence every person using data can be attributed and identified with different personality traits. The way leaders have been elected in certain countries by campaigning on social media platforms its’ very likely that successful campaigning of prospective winners only requires predictive behavioral analysis of its citizens who will vote. The expectations of voters from the future leaders, their choices, lifestyle, demands, their sensitivity towards political, ethnic, religious, linguistic issues are all available on record. They speak their mind out without deliberating upon the possible consequences in what manner their digital speech and expression can be misused. The Cambridge Analytica is one such example that must teach a lesson, which is said to have an instrumental role in the campaigning of the 2016 American Presidential elections for Donald Trump and Brexit. Thanks to the Whistleblower who mustered courage, else the world would have not known of the methodologies of misuse of data. There may be many other examples that may crop up and the world may recognize in times to come.

If this private data is being used against the citizens it can change the destiny of the country. The future of the nation will depend on attracting their votes by doing more data analysis of users for the election campaigning, designing speeches by knowing the audience. Shaping the nation and protecting the legitimate interests of the people, what Governments are meant for, will be relegated.

Privacy Protection and Data: For Our Connectivity or Objectification?

Connectivity is a façade of data collection for data transactions.The question is when the individuality of an individual itself is not protected whether the individuality rights will remain to be protected by institutions despite vulnerabilities. Speech and expression come from individual autonomy but when the individuality itself can be manipulated through an algorithm(s), the object of such right becomes infructuous. Personality manipulations have led causing genocide and creating hatred and racism in different countries. Therefore the data security of people takes prime importance. The state must keep the data security that has been entrusted to it. It is the personal property of the citizens.

In a short history, the Arogya Setu app already encountered one significant security issue wherein a user’s precise location data was leaked to Google through a vulnerability in the self-assessment questionnaire. A hacker found that by modifying the radius available in the application by which information can be fetched about anyone who is infected anywhere in India in any area of his choice including his neighbor. Using loopholes went on to find the details of the PMO office, Ministry of Defense, Parliament of India, Indian Army Headquarters which was made public on 06.05.2020 thereby making the national security an issue and a subject matter of concern. Subsequently, he made a public tweet divulging and communicating in public the vulnerability of the Right to privacy of 90 million people and asked the State was requested to contact him in private.

This has exposed unpreparedness of the state and demands the attention of the state towards the protection of citizens’ data in the national interest.

Conclusion

“The balance between freedom and security is a delicate one.”-  Mark Udall

Whether the concept of Property as a bundle of rights can come to our rescue? The right to destroy which flows as an incidental right to ownership recognizes in legal principles that being owners of our personal data and having exclusive rights thereto are we in law justified claiming back our personal data from those who have acquired it. The right to destruction flowing from ownership rights must be interpreted as ‘right of being forgotten’ from the server where data is stored from any platform at any point in time.

There is no legal tenability of someone being the custodian of personal data without the consent of the stake-holders. Why should at all there be no right of redemption of personal details?  Nobody can deny that in circumstances like this the ultimate sufferer is not just the individuals but the democratic institutions themselves. Kahlil Gibran aptly said:

“If you reveal your secrets to the wind, you should not blame the wind for revealing them to the trees.”


[1] Himanshu Gupta,5th Year Student, Chanakya National Law University, Patna

   Srishti Sarraf, 1st Year Student, Chanakya National Law University, Patna


[i] People’s Union for Civil Liberties v. Union of India, (2004) 2 SCC 476: AIR 2004 SC 1442.

[ii] Papnasam Labour Union v. Madura Coats Ltd, AIR 1995 SC 2200: (1995) 1 SCC 501.

[iii] Kedar nath singh v. state of Bihar, AIR 955,  1962 SCR SUPL.(2) 769.

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