Last week, the Supreme Court of India repealed the draconian Section 66(A) of the Indian IT Act (2008). This amazing victory was possible only because of the determination of people like Shreya Singhal, Faisal Farooqi, Karuna Nundy and others who filed petitions against the law, defended it in the court and saw a two-year battle through to its victorious conclusion.
I recently spoke to Shreya Singhal, the petitioner who started it all. Introducing her is both daunting and unnecessary at this point: Shreya was a 22-year old graduate in 2012, when she was shocked to see the arrests of two women in Maharashtra over their Facebook posts on the shutdown on Mumbai after Bal Thackeray’s death: a shock that transformed itself into resolve and eventually, as we now all see, into an incredible moment for all Indian citizens.
In spite of censorship being an international issue right now, I was quite surprised to see that very few in the UK knew about this enormous victory. It has been covered once though,I think, by The Guardian. Why do you think there is such a lack of engagement?
That’s actually really sad because 66(A) has been copied verbatim from section 127 of the UK’s Malicious Communications Act, and the cases that we cited—Chapman and Collins—have been individual prosecutions that have gone all the way to the House of Lords, and at each stage you see that judicially trained minds cannot come to a consensus about the ethical implications of the matter. These two people were repeatedly acquitted and then convicted again. While they were finally acquitted in the House of Lords, you can see how there is confusion through all the stages of the prosecution.
When were these laws implemented?
I am not sure exactly when it was introduced into English law, but in India it was added in 2010. The Act itself was implemented in 2008, but then through an amendment they added 66(A) alongwith various other sections. Basically there were a lot of arrests, and I think the most famous one was the arrests of two girls after Bal Thackeray’s death in 2012. One of them had complained about Mumbai being shut down, and the other person had ‘liked’ the post. They were arrested allegedly for their protection, which I thought was shocking, because firstly you are being arrested for such an innocuous comment; then you are told that you are being arrested for protection. They are taking away your civil liberty in the name of safety. And while this particular case was not our main project, we had also pressed for damages for the girls because honestly it was gross misconduct on the part of the police.
Do you think the police are a huge part of the problem?
The police in India cannot follow the procedure laid down because they tend to be at the beck and call of the politicians: you know, not even nepotism or favouritism, but a consciousness that they are under someone’s thumb.
And do you think this is a problem that can be—forget solved—even addressed?
Perhaps not at the grassroots level—not if you are going to a police station or a thana in one district or colony—but it can be addressed by passing sensible laws that cannot be misused. That’s where the judiciary and the legislature come into place: they can pass laws, which are not liable to be misused. To be arrested for voicing your opinion on a social networking site makes no sense, especially since the same opinion would be fine if you had voiced it on television or through a written article. In fact after Bal Thackeray’s death there were many articles and photographs of the deserted streets of Mumbai. If these writers and photographers were not arrested then why should a higher liability be imposed on the Internet? It is basically a gagging, the worst aspect being that it was not just a fine but also the possibility of imprisonment for up to three years. All of the arrests that I have cited—around seven to eight cases—these were not standalone cases. They are only the famous ones that we found out through the media. They were simply the ones which had been publicised. They shocked India the most—I mean these were arrests of 19- to 20-year-old women and for what? But there were many more. I read an article yesterday that there were 14 to 15 cases in Delhi alone under 66(A).
Throughout modern Indian history, we have been an outspoken people. We have always said what we thought and we fought for our rights. And that is the beauty of a secular democracy—it is an environment that allows for healthy debate and difference of opinion. The fact that we are so diverse and that our society holds together so many castes, classes and kinds of thinking means that we cannot gag the disagreements on a platform that is most accessible and most widely used. After all, you only need a smartphone to access the Internet. The availability of the Internet has spread from a few cities to places like the heart of Bihar in a short time.
Recently Zuckerberg came to India and started a project that may provide free, high-speed Internet in rural India. So when you look at it all, you realise that the Internet is much more accessible than a talk delivered on the television or apiece in a newspaper.
But newspapers are also increasingly being digitised. That would blur the boundaries, right?
Exactly. I read all my news online.
You had just returned to India as a graduate student when the news broke. Tell us what made you decide to file the petition.
It came out of a discussion with my mother, who is a lawyer. We were talking about it, and soon it had spiralled from a discussion into an argument and she asked me why I wasn’t doing anything about it. I don’t think either of us thought I’d carry it through, but then I called up my mother’s friend Ninad, who is my lawyer now, and Ranjita Rohatgi. We sat together and within two days we had mentioned it in court—the petition had been filed.
That is amazing. And when did Karuna Nundy and Sanjay Parikh become part of the initiative?
They had challenged 69(A), which dealt with the blocking of websites and their petition got attached to mine. There were quite a few petitions on the same cluster of issues. Aseem Trivedi, who was targeted by 66(A) had also filed a petition, for instance, seeking individual release for himself. Then there was Mouthshut.com, who filed it against 79(A), which deals with intermediaries.
So it all came together?
Yes, since they all dealt with the IT Act and luckily mine was the first one that was addressed. In fact, I feel lucky that I was the first person to file it.
Do you think it would have been challenged very soon in any case?
When we mentioned it before Chief Justice Altamas Kabir, he remarked that he was surprised it had taken so long. He said that they had wanted to take suomoto action. So I feel that even if no one had filed a petition, something would have been done, because the courts were equally shocked by what was happening in our society. Free speech is so fundamental to our society—and not just because it is guaranteed by our constitution—but because it is crucial to us as Indians.
But the right to freedom of speech can also be used as a cover for harassment of many users like women and those visibly belonging to minority identities online. The rise of online harassment has created a widely advocated demand for safe spaces. Are there ways in which we can make the online space safe for vulnerable groups without compromising on the right to freedom of speech?
I definitely think that the Internet should be regulated. But I think there are enough existing laws in the Indian penal code, even within the IT Act itself, which may make specific acts of incitement, hate speech, defamation, and fraudulent use criminal. There are other laws too that deal with these acts. My issue with 66(A) is that it was a blanket provision. Basically if you didn’t like anything on the Internet, anything including Whatsapp messages, emails, reviews of restaurants—you could get someone arrested for it.
So do you think the intention behind the law was that of political intimidation?
See, during an interview by a television channel, I heard a parliamentarian on there saying that the reason 66(A) was added was to stop spamming. I feel that the legal intent may have been good. Even the judges have concluded that there was no malicious intent. That said, having a law that makes sense theoretically does not really make much difference if it doesn’t work. You can’t just defend something on the basis of the intent.
If it had been used in the right way, it would not have been criticised so much in the public domain. But the section was so vague—it makes the quality of being annoying a crime. You know if I were to find this interview this interview annoying, it doesn’t give me the right to get you arrested. Or if I ‘like’ it, it does not give someone else the right to get me arrested for it. You ‘like’, share and write things online. It is that level of anonymity that enables people to be freer to express themselves. That expression of your views should not be gagged. It should be allowed to grow. A blanket provision, in this context, would only harm us. It did harm us because it was misused repeatedly.
Censorship is not limited to the Internet though. It has seen resurgence in India in the last few years—I am thinking of DibyeshAnand, Perumal Murugan, Wendy Doniger and the 2012 Jaipur lit fest fracas over Salman Rushdie, and that is only to name the most high-profile cases. How do you think the larger trend can be resisted?
We have to deal with it case to case, I think. That was the problem with 66(A): you cannot have preventive laws for censorship. Even with the censor board for films, you cannot just be banning things. This list of hundred words that they are banning—‘dick’ and ‘balls’—I wonder what will happen if Dick Cheney comes to India. Will there be a beep every time his name is pronounced? (laughs)
Tell us about yourself. You started as an astrophysicist and made a transition into legal activism and succeeded in making history, all by 24. Where do you see yourself in six years’ time?
I honestly don’t know. I have been asked this before. I am still in the middle of the law degree and hopefully I will finish that in a year and half, and I know I want to litigate. I don’t know what field I want to go into right now, because as a litigator I would be exposed to many things, and while I may enjoy something like intellectual property rights in class, it may turn out to be dull as a career. So, we will see.
As younger people, we are often mocked for being naïve. Many of us have grown up being told that we reach our parents’ age we will realise that compromising is the best solution. As an activist and someone who has moved between disciplines, what is your advice to the generation that is growing up right now?
I would say follow what you want to do. Any preconception of career in this age—these safe professions of engineering, medicine and law—is not the way to go. I did not have them, which is why I went for astrophysics. I am still very interested in the subject. I did it because I loved it. Young people should do what they love and they excel at. They should not fall into the stereotypes that their parents may set for them. That is my advice to them.
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