January 22, 2025

In a civilized society, no person should have the unrestrained right to level unsubstantiated charges against; or hurl abuse at; or even criticize another person or group of persons or an organization in a derogatory manner. A person should not be allowed to harass, hound and mentally persecute another person for holding a different point of view in the garb of freedom of speech and expression. Recognizing this fact, the fathers of the Indian constitution had, while guaranteeing the right “to freedom of speech and expression” to all citizens under Article 19 (1) (a), allowed the State to make laws imposing ‘reasonable restrictions’ upon freedom of speech and expression in the interests of ‘the sovereignty and integrity of India’, ‘the security of the State’, ‘friendly relations with foreign States’, ‘public order’, ‘decency or morality’ or in relation to ‘contempt of court, defamation or incitement to an offence’ under Article 19(2). With the emergence of social media, the government tried to take this restriction further by enacting an Information Technology Act and inserting the (now deleted after being struck down by the Supreme Court as being ultra vires the constitution) section 66A in it. While the intention behind the draconian section was in keeping with the intention behind Article 19(2), it suffered as it was vaguely worded with no clear definitions of major terms used and its implementation was solely to take action against unsuspecting netizens forwarding cartoons or other pieces critical of politicians. Police highhandedness in implementation was its major undoing. While delivering the judgment to delete it from the statute, the Supreme Court had said that while it was not possible to keep the current section in the law, the government was free to introduce another law that could pass the constitutional test. The apex court reiterated this again a few days ago. In much stronger words, a bench of Justices Dipak Misra and Prafulla C Pant agreed that no one should be given a free hand to run malicious campaigns on social media. It asked Parliament to bring in a new law. But is there a need to bring in a new law? Are existing laws, with small modifications, not enough to curb this? The reasonable restrictions talked about in Article 19(2) are mainly taken care of by sections 153(A), 295(A), 499, 500 and 505, among others, of the Indian Penal Code (IPC). Now each of these and other such sections putting reasonable restrictions on freedom of speech were written in the pre-Internet era and hence contain only the words “by words either spoken or intended to be read, or by signs or by visible representations.” As the police have been successful in imposing ‘reasonable restrictions’ upon freedom of speech and expression under these and similar sections in the IPC, the need is to make these sections relevant to the digital age. Just insert the words “or by sending, by means of a computer resource or a communication device” (as was there in the deleted Sec 66A of the I.T.Act) to make them read “by words either spoken or intended to be read, or by signs or by visible representations or by sending, by means of a computer resource or a communication device.” This would be enough to cover all such offences committed on the Internet through social media or otherwise. As trolling becomes a matter of concern on social media, more and more people are veering around to the view that “reasonable restrictions” need to be put on users of social media. But there are two things that remain matters of concern even as we debate whether such restrictions should be put and made a criminal offence. The first concern is the age of the persons using social media extensively. Most of them are in the 18 to 21 age bracket and many of them are between 15 and 18. They would never even think of causing malicious harm to another person. However, they unmindfully and in a spirit of fun keep forwarding cartoons, images or written matter received from friends (who have received them from others in a never ending chain whose origins are very difficult to trace). Is it right to punish them for this and how many such persons will we punish? The second concern is that the Supreme Court is already hearing a petition on whether defamation should be de-criminalized. There is a growing body of opinion that thinks that civil law has enough teeth to deter defamatory remarks and that the criminal sections in this matter are used only to harass journalists and other activists. Even as the apex court has reserved its judgment in the matter, it needs to be debated whether including defamation or trolling or any malicious campaign on the internet in existing law under IPC or enacting a separate criminal law for it is advisable. Recently, a cartoon was put up at a website specializing in such fare that added a fourth monkey to the set of three generally called Gandhi’s monkeys. While the original three exhorted people not to hear, see or speak evil, this fourth monkey, alive to the digital age, exhorts people not to post evil. The Internet has made people speak their mind and react to every news item that is published, instantly and in real time. At times, these reactions are in extremely unprintable language. Others who read them add their own colorful comments and the process continues till it trends on social media. This just goes on to show that even ordinary people have lost all sense of decency and reasonableness when it comes to expressing themselves on issues. While it is necessary to stop this, doing so by making it a criminal offence is debatable.