In Kerala, a win for free speech online. But there’s more to do

The amendment, ostensibly to protect individuals from cyberbullying, makes the offence cognizable, gives anyone the right to lodge a complaint or a police officer to register a case sub motto against the accused. If you strip away the legalese, this means the police can arrest the accused without a warrant and start an investigation without the permission of a court. Other cognizable offences are crimes like murder, rape, and dowry deaths.

If history is any lesson, we know that the amendment would have tipped the scales in favour of the state machinery and could have been detrimental to individual freedom and freedom of the press. Take for instance the case of Section 66A of the Information Technology Act which was struck down by the Supreme Court in 2015 as unconstitutional. The section, sweeping and vague, was misused on several occasions by the state to muzzle criticism.

For example, two Mumbai-based women were arrested for a Facebook post criticising the incumbent government in Mumbai in 2012. The state had used the section 66A of the Information Technology Act which gave them powers to charge individuals for up to three years in jail for electronic messages that could cause “annoyance or inconvenience.” Three years later, the top court righted a wrong.

Thankfully, better sense prevailed sooner in the Kerala episode and the government withdrew the amendment much before it reached that stage. The fact that lawmakers listened to criticism and withdrew the amendment restores some of the lost lustre to the idea of democracy.

But that’s only half the battle won.

As Internet Freedom Foundation, a digital rights organisation argues, there is much scope to improve freedom of speech in India. The foundation, in 2019, had called upon the ministry of home affairs to issue an advisory cautioning against the misuse of criminal laws to target social media posts. “…such an advisory may include the necessity to obtain legal opinion prior to arrest and registration of an FIR, as well as cautioning against the police seeking custody when it may not be necessary for investigation.” It also asked for a comprehensive media and speech law reform.

Specifically, India also needs to re-look at its defamation laws covered under Section 499 and 500 under the Indian Penal Code. In 2016, the Supreme Court rejected a petition filed by Rajya Sabha MP Subramanian Swamy, Delhi Chief Minister Arvind Kejriwal, and Congress president Rahul Gandhi to decriminalize defamation. But newer attempts are being made to decriminalize defamation. This means doing away with punitive measures like jail term in defamation cases. As Gautham Bhatia pointed out in a 2016 article: The idea of trying defamation as a criminal case has its roots in archaic practices of 17th century Britain and several countries including the United Kingdom, Zimbabwe, the United States, Canada, and South Africa have reformed these laws in the interest of protecting free speech. Given how important free speech is to democracy, it is about time India does the same.

(Jayadevan PK is a former technology journalist and recovering startup founder. He now works with Freshworks Inc as an evangelist, focusing on efforts around brand building. He’s also a commissioned author at HarperCollins.)