BY INVITATION
Three lessons for Kerala govt from Shreya Singhal judgment
APAR GUPTA
29.11.2020
In March 2015, when the Supreme Court struck down the draconian Section 66A as unconstitutional in the Shreya Singhal judgment, it referred to Mark Antony’s speech in Shakespeare’s Julius Caesar to distinguish between free speech and incitement. Here, Antony repeatedly referred to Caesar as an “honorable man”, who still incited a crowd to mutiny.
Governing speech is a complex matter, and the Kerala government was faced with the same predicament last week. It first promulgated, and then repealed through a subsequent ordinance, a provision to criminally prosecute online content. This short-lived provision was Section 118A, inserted into its Police Act. Section 118A followed in the steps of Section 66A as well as Section 118D of the Kerala Police Act. It contained vague adjectives to criminalise online posts and communications. In this case, the Shreya Singhal precedent served as useful guidance on the legislative ambit for regulating online speech. The judgment provided early support for civil society groups, media critiques and an active political debate. It led to several PILs in the High Court of Kerala, where the state government submitted that it would walk back on its harsh ordinance. This may seem like a quick and decisive victory, but concerns around this issue are still alive.
First, remember that the objective of these provisions was ostensibly progressive. They were meant to shield social groups that face disproportionate online abuse and attacks on account of gender, caste and religion. The history of Section 66A shows that shortly after enactment, it was also defended as an attempted bulwark against the proliferation of online threats, hate speech and misinformation. However, they were trapped in their own language, which lacked specificity and contained the potential for abuse of the law’s intent. This flaw was also present in Section 118A, which though relatively narrowly tailored, contained phrases such as “humiliating”. Again, it was the prospect of its implementation that was a bigger cause for nervousness. More importantly, given that prosecution rests in the hands of police, who face systemic challenges and political interference, these provisions became a tool for chilling dissent and citizens’ demands for accountability. This peaked with the prosecution of Shaheen Dhanda and Renu Srinivasan in Palghar who had, in a Facebook post, criticised a general shutdown in Maharashtra following the demise of Balasaheb Thackeray.
This brings us to the second takeaway from the Shreya Singhal judgment. Despite Section 66A being struck down as unconstitutional, our study (conducted with my co-author Abhinav Sekhri) has shown that it is still being used across India. This data was taken to the Supreme Court, which was shocked that Section 66A cases were still being registered and prosecuted.
This is the reality of criminal law in our country. Quite often, a weak and general rule of law framework gives rise to practices that stray from the objectives of rule-making. Therefore, there was enough experience for experts to view the insertion of Section 118A with trepidation, and warn of the potential impact on online speech that criticises or demands answers from powerful entities within Kerala.
Stepping back from these two core problems, it is important to consider that the online space has changed dramatically since 2013, when the Shreya Singhal petition was filed. There are close to 700 million active broadband connections in India and social networking is a way of life. While this certainly serves the values of civic participation, it also poses challenges. Online conversation poses risks to individuals and groups, which require a fuller toolkit with law as an important element within it. Here, we must lean on established human rights norms that look beyond criminal law, like the International Covenant on Civil and Political Rights.
It is this approach that was conveyed in the statement of the Malayalam film industry’s Women In Cinema Collective which asked for “an approach which combines social, administrative and legal responses to the problem and to move away from excessive criminalisation.”
This brings us to the third and final lesson of the Shreya Singhal judgment. Section 66A was inserted through a hasty amendment in Parliament, a bundle of laws hurried through in the aftermath of the Mumbai terror attacks. The urgency came at the cost of debate and parliamentary scrutiny. Similarly, the Kerala government rushed into an executive ordinance for Section 118A, rather than proposing the law and debating it thoroughly in the state assembly. Whatever the costs of legislative democracy in terms of delay, it also provides the opportunity for rigorous consideration. One hopes that any future such regulation will see the wisdom of this democratic approach.
Gupta is a lawyer and the executive director of the Internet Freedom Foundation.
