Author: Siddhika Chaudhary, Lloyd Law College
Abstract
The social web of social media has evolved over time. Where people used to use social media for the purpose of connecting to their loved ones, now they have started using the platform for income generation, content creation, and a stage to showcase their talent. Freedom on social media has become a debatable topic in the past decade. It is used for raising voices against the atrocities prevailing in the society on the other hand it can violate someone else’s Right to Life as well. This article analysis the legal debates over free expression on social media platforms, emphasizing especially on individual rights. Here in this article, we will explore the boundaries and limits of Article 19(1)(a) i.e. Freedom of Speech and Expression with the help of cases and the latest controversy of reality shows like India’s Got Latent
Background
Article 19 (1) (a) i.e. Freedom of Speech and Expression provides every citizen of India to express himself the way he wants to. But is it absolute? No. Is there any constitutional provision for the same? Yes. Article 19 (2) lays down restrictions for the Freedom of Speech and Expression on the grounds of Security, Foreign relations, public order, Decency, Contempt of court, Defamation and
Incitement. This article has been attracting debates for a long period of time. From colonial period to now 21st century i.e. democratic period, it has always been a debate as to what statement to be considered freedom or an offence. Where this freedom was given to the people to express their views, opinions, ideas and for communication purpose etc., it has now been creating challenges regarding the need of balancing freedom and regulations or restrictions. Freedom of speech and expression has always been a task on media, whether traditional or digital. India has been struggling since colonial era to possess liberal rights over media so they can choose media as a platform to reach the public. After the pandemic, it won’t be wrong to say that media has been a platform of harassment, means of spreading obscenity and bullying fellows over various grounds (sexuality, race, caste, occupation or even talent).
Legal provisions
1. Article 19 (1) (a) – Freedom of Speech and Expression. Covers text, images, videos and all kinds of digital communication.
2. Article 19 (2) – This particular clause lays down the restrictions to Article 19 (1) which means this right is not absolute. The article states any statement that affects sovereignty and integrity of India; security of the state; friendly relations with foreign states; public order; morality or decency; Contempt the court, defames any legal entity; or incites any offense will not be considered under the parameters of Article 19(1)(a).
3. Section 66 (A) of IT ACT, 2000- This provision criminalized offensive online messages even if they include fair criticism or dissatisfaction. This section was later struck down in 2015 in the judgement of Shreya Singhal v. Union of India.
4. Section 69 of IT Act, 2000- This provision lays down that government can block any passage of accessing any information in case it bothers state’s security and public order.
5. Section 79 of IT Act, 2000- This section provides protection to all kinds of social media platforms but on a condition that they will take down any offensive material when notified about the same.
6. Section 124A of IPC- It criminalizes speeches or statements that incite violence against the government.
7. Section 153 A and 295 A of IPC- This section criminalizes speeches or statements that invoke enmity between different religions or hurt religious sentiments.
8. Section 499 and 500 of IPC- criminalizes any publication of such a derogatory statement that lowers the reputation of someone in the eyes of a reasonable man.
9. The Indecent Representation of Women Prohibition Act, 1986- criminalizes the publication of any obscene content or derogatory representation of women on any kind of media.
10. The Protection of Children from Sexual Offences (POCSO) Act, 2012- This provision criminalizes any content that promotes child pornography including its publication or circulation over social media.
11. IT Rules, 2021 (Intermediary Guidelines and Digital Media Ethics Code)- It lays down provisions to remove any illegal or obscene content within 36 hours of legal order. Introduced grievance redressal offices for users and mandates the traceability of first originator of messages.
Case Laws
Shreya Singhal v. Union of India – In this case two girls showed their disappointment towards a political party which was charged under Section 124 A of IPC and Section 66A of IT Act, 2000. Supreme Court in this case held that expressing views regarding something is not offensive unless it incites hatred among masses. It later struck down Section 66A of IT Act, 2000.
Mee Too Movement – In this case, a model, actress filed a case against a famous film director accusing him of sexual molestation in workplace. After this case, many actresses and female employees came into the picture who raised voices against sexual exploitation at workplaces. This movement became a worldwide moment where people started using social media as a platform to raise voices against exploitation.
Rahul Gandhi Defamation Case – Rahul Gandhi made a defamatory statement regarding honourable Prime Minister Mr. Narendra Modi saying “he is a criminal”. He was sentenced with 2 years of imprisonment by Surat Court. His appeal was later dismissed by Gujarat High Court resulting in his disqualification from Lok Sabha. His appeal is still pending in Supreme Court.
Analysis
Everything that was once given to the mankind for their contentment is now being used as a means of creating ruckus. Recently, famous standup comedian, Smay Raina has caught himself in a controversy where there were some sensitive remarks over women and parents. They claim that it was a part of satire and dark humour which was a paid content over You Tube. That video included other social media faces also. People found their statements obscene and derogatory and filed a case against them. Some argue that since the content needed subscription to access that, some argue that the show corrupts the morals of viewers. Now the question remains whether it should be considered infringement of Right to Freedom of Speech and Expression or not? Well viewers are well versed with the fact that what kind of show it is, and they paid for that content and willingly watched that content. There was no mensrea that is malice intention, so it should not be considered crime at any point. Some liberals added that too much restriction will affect the freedom of work of many people. It will affect the quality of their content. And some conservatives argues that such people say offensive things in the name of comedy and destroys the basic essence of comedy. Comedy doesn’t mean insulting or degrade anyone, it means that your piece of writing is capable enough to brightens someone mood and mind. This matter is still pending in the court of law
Conclusion
Well, this Article of 19(1)(a) of Constitution of India will always be a topic of debate. Since people have different thresholds of bearing statements, it’s difficult to restrict anyone. Something which is obscene or offensive for one, might not be offensive for the other party. It can be said that social media is a double-edged sword. No doubt it promotes the motto of free speech but also provokes the intention of hate and spreads misinformation. It is true that restrictions to a fundamental right are necessary but excessive restriction might violate the democratic freedom. So, the need of an hour is to find a balance between free expression and responsible regulations to ensure the openness in digital spaces.
FAQS
Q.1. Doesn’t Article 19(2) violate the absolute freedom under article 19?
A.1. No, Article 19 is not an absolute right anyways. Also, Article 19 (2) include reasonable restrictions which complies that an individual’s freedom ends where the other individual’s right is violated.
Q.2. In S. Khushboo v Kanniamal case, why her statement was not held liable of indecency and proving public peace?
A.2. Supreme Court held that there was no primafacie evidence which could say that her statement were derogatory or obscene. Also, she just expressed her views over a sensitive topic which neither provoked violence or corrupted someone’s mind
Q.3. Can hate speech be taken as fair criticism?
A.3. No, because hate speech can lead to violence and destroy public peace. Where’s fair criticism is a defence which doesn’t affect the peace aspect but shows person’s views over something.
Q.4. Does Article 19 (1)(a) include Freedom of Press ?
A.4. Yes, it was held in Sakal Paper v Union of India and Indian Express v Union of India
Q.5. Why Kanhaiya Kumar v Nct of Delhi was not included in Fair speech and comment?
A.5. It provoked national peace and led to protest and disharmony among individuals, under Article 19 (2) anything that harms the public order is offensive as per Constitution of India
