Freedom, Restraint and Regulation

 

By Kishore Kulkarni

The significance of freedom of speech in a democratic society cannot be overstated. It enables the free flow of information, encourages the exchange of ideas, promotes transparency and accountability, and fosters an inclusive and tolerant society. Freedom of speech acts as a vital safeguard against authoritarianism, ensuring that the voices of the people are heard, and governments are held accountable for their actions

ON 24^th Sept, A single Judge bench of Karnataka High court dismissed a writ petition by ‘X’ Corp which argued that the Information Technology rules of 2021 allowed censorship and overstepping the constitutional limits of restrictions engrafted under Article 19 (2) of Constitution.

Section 79 (3)(b) of the IT act which acts as ‘Safe Harbour Protection’ to social media companies by making the company not liable for the posts, comments and other activities by the users of that platform. In the sense, the company cannot be held liable for its users. However, this protection does not apply to a situation where, the company is aware of content which is illegal and refuses to delete such content, in that scenario the protection from liability to the company ceases to exist. Rule 3 (1)(d) of IT rules 2021 says intermediaries must not allow users to post or share content which is prohibited in interest of the (1)sovereignty and integrity of India  (2) security of the State (3) friendly relations with foreign States (4) public order (5) decency or morality (6) contempt of court (7) defamation (8) incitement to an offence or any information which is prohibited under any law

 ‘X’ Corp, challenging the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) rules, 2021, argued that Section 79 (3)(b) is not an empowering provision and such cannot be used for blocking information It is not a correct reading of provision, which will lead to censorship, which is unconstitutional per se. The intermediaries cannot be punished for Third-Party content. The platform is not responsible for any content as it acts only as intermediary. The company argued Rule 3 (1)(d) of IT rules 2021 is unconstitutional and the takedown order by the state is arbitrary.

On contrary, the Union argued that such restraint is necessary in the era of fast spreading information particularly through social media. It contended that rights envisaged under article 19 is essentially a citizen centric right and such is not available to foreign entities or corporations. Such regulation of unverified content is required to maintain public order, national security etc

The court framed eleven (11) issues which included the historical aspect of free speech, applicability of American Jurisprudence, Constitutionality, and legality of Sahyog portal. For the purpose of this article, I have confined only to challenge to the constitutionality and will not elaborate the historical aspect and American jurisprudence in detail. In the eleven issues framed by the Hon’ble court, issue no 7 (challenge to the rules on the ground of vagueness) and 9 (Constitutionality of Sahyog Portal) appears to answer the conundrum.

The court held that insofar as challenge to the rules is concerned Rule 3 (1)(d) cannot be read in isolation to section 79 of the act. The essence of section 79 is that unlawful content refers to material which has already been declared illegal and such cannot be vague. (Para 16.8)

The court relied on judgments of apex court A.K.Roy V. UoI, Benilal V. State of Maharashtra. The court opined that Rule 3 (1)(d) mandates due diligence and cascading effects of information does not happen by itself. The platform cannot say that once the information is uploaded, the platform is not responsible (Para 16.12). With the above reasoning the court held that the provision is not arbitrary and hence is not unconstitutional. So far as issue no 9 is concerned, The court was satisfied that sahyog portal is not an instrument for censorship but a mechanism to streamline communication. To describe Sahyog portal as ‘censorship’ portal is mischaracterisation and such is not ultravires.

In a book titled ‘Republic of Rhetoric’ the learned author, in chapter titled ‘Munshi’s Coup in the Constituent Assembly’ writes that the framers of Indian constitution were primarily concerned with three broad themes relating to freedom of speech and expression. Firstly, whom should be the right be given, only citizens or non-citizens as well? Second, should the right to free press be specifically recognised? Thirdly, what restrictions ought to be imposed. It is in the context of first and third issue the court decided the matter of ‘X’ Corp Vs Union of India.  This judgment underscores that freedom of speech is not absolute but harmonised with constitutional responsibility. This responsibility is on the state to preserve the liberty and order and maintain balance for free speech and restrictions. In balancing this, the state should ensure that those restrictions must be in the contours of constitutionalism.