–Kakali Das |
A quote by a former President of Uganda, Idi Amin reads, “There is freedom of speech, but I can’t guarantee freedom after speech.”
‘Freedom of Speech’ is a fundamental freedom in the country. As citizens of this country we are all allowed the freedom to utter what is on our mind, with of course some exceptions. There has been an interesting development on the social media sites over the last couple of months. The Kerala government passed an ordinance that the Kerala Governor gave his approval to – which basically allowed the police to arrest people if they posted or published something on social media that was deemed offensive. This included a prison term of 5 years or a fine of 10.000 rupees. There was a lot of sharp reaction incidentally on social media against this. Some people called this the curtailing of freedom of speech. The fact that this ordinance was worded so loosely, it could have been used to crush the media, and against people who are criticising the government. Because of the criticism that came from the general public and the opposition, the Kerala government has rolled back ever so slightly and decided it will not implement this change until after it has had a chance to discuss the matter with other MLAs when their assembly is in session.
Kerala government attempted to bring in a fairly Draconian law. With the existing laws across the country in many states, people are being arrested for having posted something on social media against the concerned government. For instance, Prashant Kanojia spent over a month in jail because of a tweet that he put up. Journalist Patricia Mukhim, who is an award winning Journalist in the North East faced a complaint that was filed against her for a Facebook post. When she went to the Meghalaya High Court, the court refused to squash the criminal proceedings against her for a post she put up on Facebook. Moreover, the Supreme Court in October had warned the State governments that the police had been summoning citizens from one part of the country to the other over the social media posts. The Supreme Court said, “Do not to cross the line and let India remain a free country”. There have been cases in Uttar Pradesh where Journalists and ordinary citizens have been picked up and arrested by the police for the social media posts that they have put up. Similar cases were reported in Chhattisgarh, Tripura, Assam and Kerala. In Maharashtra, a person was arrested twice for posting against the Chief Minister, Uddhav Thackeray and his son, Aditya Thackeray. A large part of this is because of the media, since the media hasn’t handled its responsibility with care. The media has squandered its self-respect in a lot of cases and as a result it finds that there are difficulties every time these arguments are being made before courts.
“For different reasons I just don’t post anything political on social media, except for stuff on cricket and football, and even that I get abused for. Every time such things happen these laws are abused – Prevention of Terrorism Act (POTA), Terrorist and Disruptive Activities (Prevention) Act (TADA) etc. and it’s more often than not are used as a tool for political victimisation, for settling scores, for vendetta and therefore, even if laws have to be brought in, there have to be enough checks and balances, since they are liable to be misused, and they had evidently been misused in the past and will continue to be misused”, Javed Ansari, Senior Journalist said.
When we speak of trolling, we speak of a variety of things. We speak of a barrage of speech that is distracting and annoying, like rape threats, death threats, cyber stalking etc. We need to be utterly clear that the remedy is tailored to the problem and that is what our constitution says. Our constitution very clearly says that everything is free speech until it comes under those eight categories under article 19 (2) which authorises the government to impose, by law, reasonable restrictions upon the freedom of speech and expression, that is capable of being prohibited and limited. But also a long line of constitutional bench judgements even say that remedy must be tailored to the harm. Laws have to be very specifically tailored to the harm without limiting freedom of expression in a way that is not reasonable.
There is a clear effort among all of our state governments to control our freedom of speech on social media. State governments and central governments want to control social media for various reasons. Some of them are actually in the best interest of the general public, such as to knock down – unverified rumours of cow slaughter, of child kidnapping, circulations of mis-information across social media which leads to lynching. To that extent, the control of social media is certainly necessary. But for all these cases of journalists and common people being arrested very often are not the government’s culpability alone, there are private complainants – complainants from various parties and IT cells who wants to check up on what the opponents are publishing and eventually want to put that opponent in trouble. The governments arming themselves with overboard legislation is certainly not on, because governments’ action most directly impacts freedom of speech and also sets the design under which legal proceedings continue.
“The first thing we need to mend is to take the sting of arrest away, unless and until violence is being incited. Social media posts shouldn’t lead to immediate arrests. Even where violence is incited, in a lot of cases there are enough tools with the administration, including preventive retention to do what is necessary. Take away the threat of immediate arrest and specially, with regard to journalist and ordinary people, then we may have a saner administration of the law in regard to the consequences of social media posts. But there must also be very quick remedies for defamation, trolling, cyber bullying, where the platform themselves should be authorised to take it off as fast as possible” – Sanjay Hegde, Senior Advocate, SC said.
We have criminal defamation in the country that actually allows for Journalists to be prosecuted under the criminal law. There is also, perhaps, a move by state and central governments to ensure that people must now introspect multiple times before tweeting or forwarding anything on social media. It is always a double edged sword. Regulation is always unpleasant, but the absolute freedom from any laws give one the freedom to post any amount of hate on social media.