The history of the Indian Supreme Court’s engagement with the freedom of speech has been fraught and conflicted.  For every great judgment, there have been times when the Supreme Court has let itself down – along with the millions of citizens who repose their trust in it.

Speaking broadly, Supreme Court cases cleave along two distinct lines, which are in deep tension with each other. One set of cases would have you believe that Indian citizens are corrupt and corruptible, prone to violence, and cannot be trusted with too great a measure of freedom – especially when it comes to speech, which is quintessentially corrupting. For their own good, Indians need to be protected from the malign influences of speech. This understanding was at work when the court upheld the constitutionality of sedition, pre-censorship of films, and our own version of a blasphemy law.

But another set of cases views Indians as thinking beings who bear the responsibility of choosing for themselves how to lead their lives, which doctrines to subscribe to, what is moral, or decent. It is not for the government to impose its vision of the good, right and true on individuals by restricting what they can see, speak or hear. In its early cases on press censorship, and in some of its more recent cases on obscenity and film censorship, the court has endorsed this idea.

Consequently, every time the Supreme Court decides an important free speech case, its consequences go far beyond the individual judgment. Every free speech case strengthens one of the two competing visions and undermines the other. Tuesday’s 66A judgment relating to restrictions on the internet is not simply about striking down a bad law: it is a crucial contribution to the public discourse about the freedom of expression, civil liberties and democracy in India.

Advocacy and incitement

At the heart of the judgment is a crucial distinction between advocacy and incitement. Under Article 19(2) of the Constitution, the freedom of speech may be reasonably restricted “in the interests of public order”. But what does this mean, precisely? If I write a newspaper report voicing my support for a revolution against the State, can I be punished in the interests of public order? What if I deliver an incendiary speech to an enraged mob, urging them to immediate violence?  What – if anything – distinguishes the two situations?

When the Supreme Court upheld the constitutionality of Section 295A (insulting religious feelings) in 1957, and that of sedition (in 1962), it did so on an assumption that this question does not matter. In Ramji Lal Modi, the court held that maliciously outraging religious beliefs had a “calculated tendency” to disrupt public order. In Kedar Nath Singh, it held that, at times, spreading disaffection against the government might have a tendency towards public disorder. But “tendency” is a word of wide ambit. If I start smoking now, I will have a tendency towards developing cancer in the unforeseeable future. Any kind of dissenting speech could have a tendency towards public disorder if it convinces enough people about its merits. “Every idea,” wrote Justice Oliver Wendell Holmes, “is an incitement. Eloquence can set fire to reason.”

But to restrict speech on the ground that it might have a tendency to disorder not only authorises far-reaching prohibitions, it also insults the autonomy of the audience.  By blocking speech on the ground that listeners might come to hold the wrong view, or do the wrong things, the government and the court refuse to treat them as autonomous beings.

Consequently, in a different line of cases, the court dispensed with the tendency test, and insisted upon a close degree of proximity between speech and disorder. The ultimate analogy is with shouting “fire” in a crowded theatre. When we say that the freedom to speak does not include the freedom to shout fire in a crowded theatre, we have in mind a classic situation of temporary, diminished listener autonomy. It is this idea that is captured in the latter line of cases such as S. Rangarajan, which insisted that the relationship between speech and disorder must be like that of a “spark in a powder keg”, and Arup Bhuyan, which held that there must be “imminent incitement to violent action.”

On Tuesday, the Court crystallised this view in its distinction between advocacy and incitement. Advocacy of views, however unpopular, it held, could not be restricted. Incitement to public disorder – which required an imminence between speech and disorder – could. This reasoning is, ultimately, grounded in a respect for individuals as autonomous, responsible beings.

And if that is so, then perhaps it is time to rethink our sedition and blasphemy laws, which only criminalise advocacy.

Defamation and the chilling effect

A major part of the court’s reasoning rests upon how the vague and over-broad terms of 66A (“grossly offensive”, “menacing”, causing “annoyance”) would have a chilling effect upon expression. The chilling effect refers to a situation in which the law is framed in such a way that citizens will end up self-censoring, even in cases of legitimate speech, because they are afraid of legal liability.

Vagueness is one form of the chilling effect, but interestingly, this idea arose in a very different context: that of defamation. The use of defamation law by corporations and powerful figures to silence critical speech has been long documented – including in India. Defamation is a particularly powerful tool to chill speech, because of its stringent standards (if a statement is proven to be false, it will attract liability even if the speaker took all due care in verifying it) and the possibility of punitive damages.

Fifty years ago, in a famous case called New York Times vs Sullivan, the US Supreme Court took note of this, observing that under the common law of defamation, “would-be critics… may be deterred from voicing their criticism, even though it is… true… because of doubt whether it can be proved in court or fear of that expense of having to do so. They tend to make only statements that steer far wider of the unlawful zone. The rule thus dampens the vigor and limits the variety of public debate.”

Consequently, the US Supreme Court took the lead in modifying the common law of defamation in order to bring it line with the freedom of expression, holding that allegedly defamatory criticism of public officials would have to be proven to have been made with “actual malice”. Its lead has been followed in countries such as Canada, South Africa and the United Kingdom, each of which allow for a wide leeway in commentary on public affairs. In deciding defamation cases, their courts have referred to the chilling effect time and again.

In India, not only does defamation law continue to be misused in order to stifle speech, it is also a criminal offence under the Indian Penal Code. Apart from the case of R. Rajagopal vs State of Tamil Nadu, the Indian Supreme Court is yet to consider defamation on the touchstone of Article 19(1)(a), which guarantees the right to freedom of speech and expression. One reason it has not done so is the lack of judicial attention to, and recognition of, the chilling effect.

Tuesday’s decision acknowledges the need to take the chilling effect into account when judging the constitutionality of speech-restricting laws. Perhaps the time has come for a long-overdue reconsideration of our civil and criminal law of defamation.

 The medium and the message

However, while the judgment has opened some doors, it has closed others. At the heart of the government’s case was a claim that different media of communication required different standards. The government argued that the internet had the capacity to reach a mass audience in very quick time and its effects upon “illiterate” people could be so great that the State ought to have greater leeway to control and regulate it.

This is a familiar argument. The notorious Cinematograph Act and Cinematograph Rules, which authorise pre-censorship of films by the much-maligned Censor Board, owe their continued existence to a Supreme Court decision in 1970. That judgement upheld pre-censorship of the cinema on the grounds that motion pictures had greater impact than other media, especially upon an illiterate population. But subsequent decisions have dispensed with the “illiterate Indian” trope, thus undermining the foundations of the film censorship regime. On Tuesday, the court had the opportunity to undermine it still further by emphatically rejecting the medium-based approach altogether.

Unfortunately, it did not do so. While affirming the fact that the medium could not affect the content of speech that could be restricted, the court nonetheless did uphold the contention that different laws might be needed for the unique features of different media (such as website blocking). While this is an ambiguous formulation, the court certainly missed an opportunity to open the door for a future challenge to India’s film censorship regime.

Nonetheless, in its affirmation that content-based restrictions would have to pass 19(2) muster (relating to the circumstances in which speech can be curbed) regardless of medium, the Supreme Court did open the door to a challenge to the government guidelines that are ridiculously overbroad and vague (for instance, prohibiting “double meaning words that might cater to the baser instinct”), and are most commonly invoked to censor films. With the 66A decision on the relationship between medium and content, and the express invocation of vagueness and over-breadth as grounds for striking down speech-restricting laws, perhaps the time has come for a constitutional challenge to the film and cable censorship rules as well.

What to expect 

The immediate impact of the decision will be felt in the domain of online speech: fewer arbitrary arrests, and fewer persecutions of political dissenters. Azam Khan’s buffaloes will no longer be a ground to put a teenager in jail. But it is perhaps in the long-term that the effects of the judgment will be most profound. On Tuesday, the Supreme Court rejected State paternalism and a view of Indians as infantile individuals who need to be protected for their own good. It affirmed autonomy, dignity, responsibility and self-respect.

For that, this judgment deserves to be long-remembered in the annals of Indian free speech and civil liberties history.