Paper: GS – II, Subject: Polity, Topic: Judiciary, Issue: Supreme Court Role in Regulating Free Speech.
Context:
The Supreme Court of India’s involvement in regulating online content, particularly in the context of the Ranveer Allahbadia vs Union of India case. Freedom of speech and expression under Article 19(1)(a) is the cornerstone of India’s constitutional democracy.
Key Highlights:
- Traditionally, threats to free speech have emanated from the executive or legislature through censorship, criminalisation, or regulatory overreach.
Existing Laws and Regulations:
In India, several laws already regulate various aspects of speech, including:
- Obscenity: Section 67 of the Information Technology Act and Sections 294, 295, and 296 of the Bharatiya Nyaya Sanhita (BNS) penalizes it
- Cybercrimes: Sections 66, 66E, and 66F of the Information Technology Act
- The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021: These rules establish an oversight mechanism by the Centre and impose prior restraint.
Judicial Role: Protector, Not Policymaker
Doctrine of Separation of Powers:
- Courts interpret and test laws; they do not create regulatory frameworks.
- In Common Cause v. Union of India (2008), the Supreme Court cautioned against judicial overreach, acknowledging:
- Institutional limitations
- Lack of technical expertise
- Democratic legitimacy of legislatures
Regulation vs. Unlawful Restraint: There is a thin line between regulation and unlawful restraint. The Court must avoid pre-censorship of the media and ensure that any restrictions on free speech are reasonable and satisfy a high threshold.
Constitutional Considerations:
- Article 19(2) of the Constitution: lays down the grounds on which the right to free speech can be restricted, including interests of sovereignty, security of the state, public order, and defamation.
- Kaushal Kishor case (2023): The Court held that additional restrictions beyond what is expressly laid down in Article 19(2) cannot be imposed on the exercise of the right to free speech.
International Practices:
Most major democracies focus on removing offensive content and penalizing breaches of removal orders. Examples include:
- Digital Services Act, 2022 (European Union): Prescribes content removal protocols.
- Network Enforcement Act, 2017 (Germany): Ensures prompt action on harmful content without adversely impacting free speech.
- Online Safety Act, 2023 (United Kingdom): Focuses on removing harmful content and imposing fines for breaches.
- Online Safety Act, 2021 (Australia): Imposes fines for non-compliance with regulation.
- In contrast, countries like China and Russia use draconian laws to restrict online content, employing surveillance and pre-censorship.
The Court’s demand for stringent laws to regulate Internet content, coupled with the Centre’s agreement, raises serious concerns about citizens’ freedom. The Court must protect, not regulate, free speech.
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