Bringing Freedom to the Internet in India

In a landmark judgment on Tuesday, the Indian Supreme Court has recognised the immense importance of free expression in the development of India in the 21st century. In its judgment, Supreme Court has restructured India's constitutional law of free speech for the Internet age.

(See: Section 66A of Information Technology Act Struck Down by Supreme Court)

We [at the Software Freedom Law Centre] are delighted by this judgment where the judges have once again shown why Indians have so much faith in the judiciary. They are committed to the constitutional principles, able to adapt with the changing times, deftly understand technology and will provide a conducive business environment for a digital India to become a reality. The judgment quotes Shakespeare and excerpts from older case law and very firm on covering the breadth of free speech cases from the United States to older Indian judgments.

The court's measured and careful treatment of the differences among the three types of speech regulations at issue will secure to Indian citizens the right to speak out freely on public issues; without any fear of retaliatory criminal prosecution. This judgment will also prevent the use of government censorship as a weapon in commercial competition. The power of government, under appropriately careful judicial review, to impose constitutionally permissible "reasonable restrictions" on speech in the interest of national security and public order through narrowly specific website blocking orders is however left intact.

The Court's judgment properly disposes of the generally fearful, anti-Internet tone taken by the Government of India's law officers. These officers' treatment of the Internet as a zone of "individualistic" and therefore dangerous speech is as incompatible with government's enthusiasm for Digital India as it is in conflict with the most basic principles of democracy.

(See: Government Says Internet Restrictions Should Be Stricter Than Print, TV)

The Court's judgment, in contrast sets a high standard to be emulated by other democratic societies around the world, as they work to enable their citizens to have the full benefit of the democratization of communications that the Internet makes possible.

Today, the Supreme Court also reminded us that the freedom of speech and of the press is the Ark of the Covenant of Democracy. Intermediary companies like Facebook, Twitter and Mouthshut have found great relief in this judgment, as now a Court order is mandatory for any content takedown.

Section 66A has been struck down in its entirety as unconstitutional and that is a victory for free speech. It identifies the Internet as marketplace of ideas and correctly describes the expressions used in 66A as completely open-ended and undefined. Recognizing the chilling effect of Section 66A, it strikes a blow at it on the ground of over-breadth and vagueness.

(Also see: How the IT Act Is Stopping India From Producing the Next Facebook or Twitter)

Companies like Facebook, Twitter, Mouthshut also have found great relief in this judgment. Now a Court order is mandatory to block pages, and an intermediary is only required to take down content upon receiving actual knowledge that a court order has been passed, asking it to expeditiously remove or disable access to certain material. This augurs very well for online companies who had been inundated with requests to take down all kinds of legal content as the power to complain was given to any person.

Blocking rules that apply to website blocking under Section 69A have been upheld as the Court believes there are enough safeguards built in the process and the Government must follow them and can block any information only on the basis of grounds provided under Article 19(2). Also, such blocking orders can be challenged under a writ petition under Article 226 in the High Courts. The Court has also recognised that the originator of the information (if identifiable) must also be heard before a blocking order is passed.

We hope that the good run will continue and the Government will seize this opportunity to right the wrongs and make it easy for information to flow and businesses to run. No more bans!

Mishi Choudhary is a technology lawyer and Executive Director at SFLC

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