Still, there are at least three big things that this judgment and this controversy tell us about the Indian state, and our rights as citizens.
One: What this judgment reminds us about the courts’ core competence
The decades since then have not been good for freedom in this country. Indira Gandhi’s authoritarianism; the deification of “offence”; religious and ethnic politics have all had chilling effects in one way or another. Meanwhile, the courts were busy elsewhere – first compromising with Indira Gandhi, and then atoning for that error through helping create and positive rights in the economic and social domains. Finally, they have spent much time and effort of late on managing the economy, the environment, this, that and the other. This judgment is therefore doubly welcome.
The executive cannot be relied on to protect unpopular views. Quite the opposite. That role has to be the courts’, but since 1960 it has not been its primary focus.
The foolhardiness of depending on even democratically-elected governments to protect popular expression was particularly clear in this case. The IT Act was legislated by the last, Congress-led government. At that time, the Bharatiya Janata Party, in opposition, attacked it; the current prime minister even went so far as to change his display photograph on Twitter in solidarity with protests against blocks purportedly under the IT Act. Once elected, however, his government did an about-turn and assured the court that they would implement it better than the last chaps, so no need to change the law. Meanwhile the Congress, now in opposition, opposed Section 66A.
This tells us more about the nature of governments than it does about the parties in question. (Though it does underline the fact that the Modi government believes “better” administration is sufficient to deal with bad laws, and there’s no need for legislative reform.)
For this government’s true opinion of the internet-related idiocies of the last government, no better indicator exists than the fate of Gulshan Rai. Dr Rai, a Delhi bureaucrat, is the man more than any other in charge of various acts of blocking and censorship under the last regime. In fact, Vakul Sharma, a Supreme Court lawyer on the expert committee that drafted the controversial 2008 amendments to the IT Act, has called Dr Rai “the father of the IT Act”. Has the new government sacked Dr Rai? No. It has promoted him – to a newly formed position, created especially for him. Narendra Modi, who blacked out his display photograph in response to Dr Rai’s blocks, has brought the same Dr Rai into his PMO as India’s first cyber-security czar, with a Rs-1000 crore budget.
Given this attitude of government, the courts have to reassert a role long forgotten: as the guardians of our liberal rights against state action. Many Indians believe that this perhaps take precedence over serving as a policy watchdog.
Two: What the IT Rules tell us about the Indian state
You may think that the IT Act, and the problematic Rules that accompany it, are merely another indication of the nastiness of the Indian state, or of the incompetence of its bureaucrats. (UPA minister P Chidambaram seemed to indicate the second, when he said on Tuesday that the law was ‘incompetently drafted’. Ah, if only he’d made that point in Cabinet circa 2010, eh?)
So how could the Act’s Section 66A, which criminalised “offence” on the internet, have passed the scrutiny of these experts, and of Parliament? Part of the problem is that Parliament did not do its job, passing the law without debate a month after the atmosphere had been vitiated by 26/11.
But a big part of the problem is a touching faith that the law would not be misused. One of the non-governmental drafters implied to a free-speech meeting in New Delhi a few years ago that the committee was not thinking of the power that they would give the local policeman – and more of how they could empower, say, a restrained Home Secretary.
There is a very deep sadness to this. The Indian state is stretched even thinner than most. In other countries, perhaps law-drafters can assume the beginnings of common sense among those who implement the law. Perhaps they can assume a modicum of impartiality. They can use concepts like “reasonable”. But, in India, law-writers cannot. As the judges pointed out, this law was entirely too vague: “Section 66A is cast so widely that virtually any opinion on any subject would be covered by it.”
This points to the central dilemma that shapes and constrains policymaking in India. You have to deal with the thinness of the Indian state, and the lack of accountability attached to those executing its last-mile laws. But you can easily over-compensate, and make laws that are not vague enough. In this case, the vagueness was the problem; in other cases, it is constricting the action of state or district authorities that has led to worse outcomes. There’s no simple answer.
Is there a way out of this constant dilemma? Only one: to increase the accountability and penetration of the Indian state, through administrative reform. Pity that’s not really on anyone’s agenda at the moment.
Third: Why this ruling is not enough
When a Kurla lawyer was arrested in December for saying something offensive about the Prophet of Islam, the FIR was filed under Section 66A of the IT Act, true – but also under a range of legal provisions, especially Section 295A of the penal code, which also criminalises offence. In other words, that guy is still in trouble.
All that this judgment does is that it takes away a bit of extra power that legislators had given cops. All the other stuff that Lord Macaulay and his Raj-era successors gave their pals in the police is still there, still hanging over our heads. We cannot talk freely about religion (Macaulay’s Section 295A), about the nation-state (sedition), on foreign policy (the “Asiatic powers”/ “friendly relations” clauses) or about the courts (contempt).
The Supreme Court has gone further than I would have expected, and insisted at least that a law, to be constitutional, must have restrictions on speech that are very precisely defined, and hew closely to the eight restrictions on speech brought in through the First Amendment. It looks like this is a good first step if you want to challenge, say, Section 295A.
From the moment that independent India’s commitment to free speech was diluted by the First Amendment, its citizens have faced an uphill walk to true freedom. This judgment does not take us to that summit. Not even close. But it does at least restart a journey long abandoned.