By Sanya Darakhshan Kishwar, Central University of Bihar, Gaya.
“Give me the liberty to know, to utter and to argue
freely according to conscience, above all liberties”
— John Milton
But stop and think a while is it all to give full freedom of speech and expression to a person or citizen. Is it correct in its literal, metaphorical, political or democratic sense to release a citizen of all the bounds of laws and set him free to exercise his speech in the arena of amphitheater? To asses this we have to first know what actually FREE SPEECH is…
1. FREE SPEECH – Defining the term: The crux of free speech is in the ability and capability of a person to think and subsequently speak freely in order to obtain information from others through publication. In the bosom of it lies public discourse without fear of retribution, restriction or repression by government. It is through free speech people could come together to achieve politico-social awareness and “moral enlightenment”.[2]
The freedom of speech is guaranteed as in Article 19(1)(a) of the Indian Constitution and is subject to reasonable restrictions under Article 19(2).The freedom of speech is regarded as the “first condition of liberty”[3] and is the “mother of all liberties”[4].Freedom of speech is extended to freedom of speech and expression as expression of one’s own conviction and the right related to it without any hindrance by the words of mouth , printing , writing or lately internet. It is also guaranteed by various international conventions like UDHR , EUOROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS , INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS.
2. STATUS OF FREE SPEECH IN INDIA : The status of free speech in India can be assessed by looking at the constitutional provisions and the respective comparisons with the American constitution after the First Amendment in the same. The provisions of the Indian constitution are far too narrow relatively than the American ones as the latter provides freedom of press which can be widened to the extent of freedom of internet and digital world too. This narrowness was removed with the case of Kharak Singh v State of Uttar Pradesh[5] which said that art 19 shall be read with art 21 and elated free speech to the zenith of freedom of life and liberty.
3.THE EMERGENCE OF NEED OF CENSORSHIP:
Patanjali Sastri J. in A.K. Gopalan case observed :[6]
“man as a rational being desires to many
things but in a civil society his desires
will have to be controlled with the
exercise of similar desires by other
individuals.”
The court has gradually evolved over many years in what is called a social democratic conception of free speech. For understanding what the court has evolved in internet censorship we have to know about the theories of free speech.
3.1 Libertarian and Social Democratic Theory of free speech: Libertarian conception of free speech takes as giving the existing distribution of income and resources to one and all just like socialist democracy. The consequence which lies is the unequal speaking power as per the American Supreme Court in Buckley v Valeo[7]:
“the concept that government may restrict the speech of
some in order to enhance the relative voice of
others is wholly foreign to first amendment”.
Social democratic theory of free speech focuses not much on individual speaker’s right but on collective rights to maintain public discourse which is open, inclusive and “home to multiplicity of diverse antagonist views and criticism”.[8]
3.2 Relation between socio democratic theory and Indian scenario of internet free speech: Free speech requires preserving an uninhibited marketplace of ideas in which truth will ultimately prevail rather than monopolization of market. The emergence of fast lanes over internet threaten its certainty of absoluteness and public interest. Many a times items published on internet violate National Laws like they may breach the security ties under Section 5 of the Official Secrets Act 1923[9] , Foreign Relations Act 1932[10] or the much hyped Information Technology Act 2000[11].From the yardsticks of freedom of press discussed in leading cases[12] where it was observed by Mathew J in Bennett Coleman case[13]:
“it is of no use having a right to express your
idea unless you have got a medium of
expressing it.”
Where we are trapped in a quagmire to decide as to what a medium of expression could be to our rescue come Union Of India v Motion Pictures Association [14]which includes films and digital medium also in medium of speech.
3.3 Net neutrality, subsequent monopolization of digital resource and “death of democratic internet”[15]
The early Internet services emerged from an academic and military context. So the need went there academics valued free and equal sharing of content as well as democratic governance strategies. Military users resisted encrypting the network itself and it is more strict in security terms .There really was no business model in this early “DNA of the net”.[16]Nowadays corporations have moved in and created a global market place where “super monopoly”[17]compete to in the arena of internet usage to make profit due to the gullible nature of users.
The negative effects of internet freedom include spying on citizens by the states that in turn exploit their ‘open and boundary less nature’[18].As a sad reflection of power dynamics in our multinational monopoly driven society internet has rather proved to be a vehicle that misinterprets our voices and leads them to the wrong direction if not understood and evaluated mindfully. Rational interpretation which is missing in today’s youth is leading to this invention of science to turn more into a vice than a boon . The major reason of it can be traced down to the degradation of net neutrality in the arena of internet. All traffic on internet under this neutral process is treated equally. Anyone can start a website and make it available to the world on equal basis. This anti discriminatory policy is however on its last pins.
4. New IT rule adopted “the IT rules 2011”: These were adopted in April 2011 as a supplement to the 2000 it Act. The new rule require company to remove within up to 36 hours of being notified by the authorities any content that id deemed objectionable , particularly if it is of defamatory , hateful , harmful to minors , infringes copyright Act. Under these rules the cyber cafes have to keep a record of their users and are required to photograph them. “The computer screen should be set up such that they are in plain sight” this rule clearly shows that the National Laws themselves do not give full and absolute right to free speech even on the internet as in the café where we feel free we are to be guided by the national rule which keep an eye on us that we do not exceed our limit of freedom and do not misuse it.
4.1 Pre screening of internet content: On 5 December 2011 the New York Times India Ink reported that the Indian government had asked several social media sites and internet companies including Google ,Facebook and Yahoo! to “prescreen user content from India and to remove disparaging , inflammatory or defamatory content before it goes online”[19]. There were several meetings with the India’s Acting telecommunication minister to discuss the issue. As a result of the circumlocutions Kapil Sibbal asked these companies “to use human beings to screen contents not technology”. He continued to tell that “cultural ethos is very important to us”[20]. On 7 December 2011 the times of India revealed that the search engine Google was around 358 items by the governance of India out of which 255 items were said to be critical of the government as per a Google transparency report. The government had asked Google to remove 236 items from Orkut and 19 items from you tube for the reason mentioned above. The other reasons included defamation ,privacy and security, impersonation, hate speech, pornography and national security. Google however told that it complied with 51% of the requests.[21]. This shows the love for free speech is more ,even than for the respect for the National Laws defying the laws.
5. FREE SPEECH ON INTERNET : CAN IT SURPASS NATIONAL LAWS?—A CONCLUDING REMARK : It is very well evident from the above discussion that free speech is our fundamental right but we can’t exercise our fundamental rights in excess and we can’t go on using it to the extent to hamper the moral fabric of the nation, truncating the democratic and sovereign environment of the nation, stifling the public order ,peace and tranquility, destroying the ultimate goal to create a healthy democracy.
“GOOD FENCES MAKE GOOD NEIGHBOURS[22]”
Laws should not be taken as fetters rather should be idealized as limits set on freedom to save the society from being rule by law of the jungle in absence of proper rules and regulations.
Children are the pillars of the future and due to over use and misuse of free speech they are being exposed to indecent contents like adult sites and pornographic materials which infect their soft brains and take them on the path of destruction . Also they cultivate habits like addiction of drugs alcohol and other menaces from coming in contact with bad company on social networking sites where they are away from the guidance of their parents and it must be sorted out at earliest.
[2] http://www.Indialawjounal.com/volume3/issue-4/Article-by-dheerajendra.html
[3] ibid
[4] ibid
[5] 1963 AIR 1295
[6] A.K. Gopalan v State of Madras AIR 1950 SC 27
[7] 424 U.S. 1
[8] http://www.Indialawjounal.com/volume3/issue-4/Article-by-dheerajendra.html
[9] Act XIX of 1923
[10] Act XII of 1932
[11]Act 21 of 2000
[12] Sakal papers(P) Ltd v Union of India AIR 1962 SC 305; Bennett Coleman &Co.v Union Of India AIR 1973 SC106 , Romesh Thappar v State of Madras AIR 1950 SC 124
[13] Bennett Coleman &Co.v Union Of India AIR 1973 SC106
[14] Motion Pictures v UOI 60(1995) DLT 180, 1995(35) DRJ 582
[15] http://motherboard.vice.com/read/net-nuetrality.trk.source=homepage.lede
[16] ibid
[17] ibid
[18] ibid
[19] Timmons ,Heather (5 December 2011) “India asks Google , Facebook to screen user content” the New York Times
[20] Timmons ,Heather (6 December 2011) “Any normal human being would be offended” the New York Times
[21] Kapil Sibbal’s web censorship: Indian government wanted 358 items removed,says Google the times of India ,7 December 2011
[22]Robert Frost, ‘Mending Wall’, The Poetry Of Robert Frost, Ed.E. Lathem,New York, Holt,1969,pp33-34