Section 66A of the Information Technology Act has been scrapped. Or, to plug the term used in Tuesday’s Supreme Court judgement, it has been struck down: that phrase maybe better captures the impact and force of this verdict. One news portal ran a piece with a headline which referenced Nehru’s Freedom at Midnight speech, delivered at the moment India gained independence from the British. Another portal used the Hindustani term, inqalab, to tag its articles on free speech: the word literally means “revolution” and also goes back to India’s freedom struggle. Clearly, then, this is perceived to be a big moment.
The excitement is understandable: it is rare for free speech to triumph and this judgment comes as an oasis in a free speech-denuded desert. India’s elected politicians, chosen to fill the legislatures and administer the executive arms of government, seem to be free speech haters. But even the judiciary, upholders of our constitution, seems quite conservative when it comes to protecting the right to expression. In fact, before this judgment, the last time the Supreme Court had struck down a censorship law was more than half a century back, in 1960.
Irrigation fee agitation
In 1954, the Congress government of Uttar Pradesh increased the rates farmers would have to pay in order to have their fields irrigated using water from government canals. Firebrand socialist and trenchant critic of the Congress at the time, Ram Manohar Lohia responded to this by launching an agitation. As the General Secretary of the Socialist Party of India, Lohia headed to the town of Farrukhabad and, continuing the old mode of civil disobedience he had learnt as a pre-independence Congressman, urged farmers not to pay this increased irrigation rate.
To counter exactly this sort of civil disobedience, however, the British had passed the United Provinces Special Powers Act, Section 3 of which made it a criminal offence to instigate a person to “not pay or to defer payment of any liability”. As it so happens, the Raj had passed this act in 1932 to counter tax non-payment agitations conducted by the Congress party. In 1954, the Congress state government of GB Pant decided to disregard irony and use the same law against Ram Manohar Lohia for his irrigation rate agitation.
Lohia challenged this charge, contending in court that Section 3 of the act was unconstitutional since it gagged his freedom of speech and expression. The government rebutted him, arguing that the curbs fell within the “reasonable restrictions" Article 19 (2) of the Constitution awarded in the interests of public order.
How could, however, a mere speech disturb public order? It could, argued the government with considerable creativity: Lohia’s instigation of non-payment of taxes was a spark which may have helped ignite a violent revolution in India. Such creativity has also been seen in the case of 66A, of course: in 2012, the Mumbai police arrested a young girl under 66A for the simple act of “liking” her friend’s Facebook status.
Hypothetical and imaginary considerations
In 1960, however, the Supreme Court would have none of it. “Fundamental rights,” it said acerbically “cannot be controlled on such hypothetical and imaginary considerations”. Since the restrictions that Section 3 of the act placed had no “proximate or even foreseeable connection with public order”, they were not held to be “reasonable” within the meaning of Article 19 (2) of the Constitution. Section 3 of the United Provinces Special Powers Act was therefore held to be unconstitutional.
While abrogating 66A, the Supreme Court used basically the same principal (amongst others), referencing the 1960 judgment while doing so. While the government argued that Section 66A is a “reasonable restriction” on free speech in the interests of public order, defamation, incitement to an offence and decency or morality, the court rejected this, saying that there really was no direct connection between an online post and, say, public order.
There is another trivial if interesting connection between the two cases: Mulayam Singh Yadav. In 1954, Yadav was 14 when, following the example of his lifelong mentor, Ram Manohar Lohia, he courted arrest to protest the hike in irrigation rates. Six decades later, the Uttar Pradesh government headed by his son would be the last to charge anyone with 66A: a teenage boy, accused of insulting Azam Khan on Facebook.
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The excitement is understandable: it is rare for free speech to triumph and this judgment comes as an oasis in a free speech-denuded desert. India’s elected politicians, chosen to fill the legislatures and administer the executive arms of government, seem to be free speech haters. But even the judiciary, upholders of our constitution, seems quite conservative when it comes to protecting the right to expression. In fact, before this judgment, the last time the Supreme Court had struck down a censorship law was more than half a century back, in 1960.
Irrigation fee agitation
In 1954, the Congress government of Uttar Pradesh increased the rates farmers would have to pay in order to have their fields irrigated using water from government canals. Firebrand socialist and trenchant critic of the Congress at the time, Ram Manohar Lohia responded to this by launching an agitation. As the General Secretary of the Socialist Party of India, Lohia headed to the town of Farrukhabad and, continuing the old mode of civil disobedience he had learnt as a pre-independence Congressman, urged farmers not to pay this increased irrigation rate.
To counter exactly this sort of civil disobedience, however, the British had passed the United Provinces Special Powers Act, Section 3 of which made it a criminal offence to instigate a person to “not pay or to defer payment of any liability”. As it so happens, the Raj had passed this act in 1932 to counter tax non-payment agitations conducted by the Congress party. In 1954, the Congress state government of GB Pant decided to disregard irony and use the same law against Ram Manohar Lohia for his irrigation rate agitation.
Lohia challenged this charge, contending in court that Section 3 of the act was unconstitutional since it gagged his freedom of speech and expression. The government rebutted him, arguing that the curbs fell within the “reasonable restrictions" Article 19 (2) of the Constitution awarded in the interests of public order.
How could, however, a mere speech disturb public order? It could, argued the government with considerable creativity: Lohia’s instigation of non-payment of taxes was a spark which may have helped ignite a violent revolution in India. Such creativity has also been seen in the case of 66A, of course: in 2012, the Mumbai police arrested a young girl under 66A for the simple act of “liking” her friend’s Facebook status.
Hypothetical and imaginary considerations
In 1960, however, the Supreme Court would have none of it. “Fundamental rights,” it said acerbically “cannot be controlled on such hypothetical and imaginary considerations”. Since the restrictions that Section 3 of the act placed had no “proximate or even foreseeable connection with public order”, they were not held to be “reasonable” within the meaning of Article 19 (2) of the Constitution. Section 3 of the United Provinces Special Powers Act was therefore held to be unconstitutional.
While abrogating 66A, the Supreme Court used basically the same principal (amongst others), referencing the 1960 judgment while doing so. While the government argued that Section 66A is a “reasonable restriction” on free speech in the interests of public order, defamation, incitement to an offence and decency or morality, the court rejected this, saying that there really was no direct connection between an online post and, say, public order.
There is another trivial if interesting connection between the two cases: Mulayam Singh Yadav. In 1954, Yadav was 14 when, following the example of his lifelong mentor, Ram Manohar Lohia, he courted arrest to protest the hike in irrigation rates. Six decades later, the Uttar Pradesh government headed by his son would be the last to charge anyone with 66A: a teenage boy, accused of insulting Azam Khan on Facebook.