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India's Free Speech Discourse: The Case for Nuance

It's all but unarguable that 140 characters —Twitter’s character limit per tweet— doesn’t exactly lend itself to nuance. That doesn’t explain why so much of our discourse in favour of free speech both on and off Twitter seems to have turned itself into sloganeering though.

‘Don’t criminalise stupidity!’ never mind that no one has criminalised stupidity per se or said that they plan to. ‘295A may next pulp the Constitution!’ regardless of the fact that absolutely nothing in the text of 295A, IPC, supports that outcome. ‘Anything after ‘but’ in ‘I support free speech BUT...’ doesn’t matter!’ unmindful that absolute free speech isn’t ideal or (it would seem) accepted anywhere.

Free speech is critical to human rights, to life as we know it, to our democracy — that, too, is all but unarguable. Sloganeering almost to the exclusion of all else though, at a time when free speech seems increasingly under threat courtesy, in large part, laws restricting it and people invoking those laws, seems less than productive. It has, to all appearances, polarised a debate about a subject which has no business being up for debate in the first place. There are no credible arguments to be made in relation to free speech being expendable. Not even if one borrows from Fahrenheit 451.

What we desperately need in relation to free speech is not sloganeering but a sustained discussion on how to define the acceptable parameters of free speech as a society, and how to ensure that the law is best structured (and enforced!) in a manner which protects and promotes free speech. And not just by quick-fix solutions like involving high-ranking officers or issuing Clarifications to explain or tone down laws.

At the end of the day, it’s extremely difficult to believe that anyone is truly against free speech per se, although there are undoubtedly those who would like to curb the free speech rights of others: abusers who would like to keep their victims from speaking out possibly by invoking defamation laws. The self-righteous intent on suppressing any dissent whether in academia or otherwise possibly by invoking laws intended to counter societal disharmony. The uncouth invoking the right to free speech in their own defence.

There are questions about what sort of speech should be legal, and what speech should be curtailed by law. There is (or should be) very little doubt that abusive street harassment directed towards an individual does not merit a ‘free speech’ defence to excuse and legitimise it, for example. On the other hand, there is even less doubt that all ‘creepy’ speech should not be criminalised. Take rape jokes, for example: they likely validate rapists and often trigger victims. They hardly speak to the credit of those who make them but, as a general rule, there doesn’t seem to be a good argument to criminalise them or even have them be legally actionable.

Unfortunately, free speech discussions rarely seem to differentiate between what is acceptable legal speech and what should be unacceptable legal speech. You are either ‘pro-FoE’ or against it. And if you have to make intellectually questionable arguments whilst being ‘pro-FoE’, and in the process leave unacceptable legal speech unaddressed, so be it, it would seem far too often. (No, for example, pointing out that ‘rape jokes’ at the expense of rape victims are problematic is not an argument against jokes at the expense of rape culture or rapists — the latter are not generally considered ‘rape jokes’ at all, and bringing them up obfuscates the issue of why ‘rape jokes’ are problematic. And, no, ‘Verbal abuse in street harassment is not a legitimate exercise of the abuser’s free speech’ isn’t a suggestion that streets be shut off, and arguing against shutting off streets doesn’t particularly contribute to a meaningful discussion.)

Leaving aside social and often personal aspects of free speech though, what is beyond doubt is that when it comes to the regularisation of free speech, the legal ecosystem leaves much to be desired. There are over thirty statutes which contain provisions dealing with restriction of free speech, and they are a hodgepodge, to put it mildly. They’ve been passed over the course of a hundred and fifty years or more, to meet a vast array of exigencies and ideals including supporting colonial masters and criminalising dissent (for example, through sedition laws), possibly reacting to terrorism and enacting legal tools to counter it (through recent amendments to cyber law), promoting societal reform by disallowing the glorification of Sati and the like, and supposedly enforcing morality by controlling adult pornography.

Online, the situation is arguably worse than it is offline quite simply because content online is governed not only by traditional laws which apply to printed content offline but also by its own set of dedicated laws which often duplicate ‘offline laws’, are unclear, and do not seem to take the dynamics of interaction online into consideration. Take Section 66A of the Information Technology Act, for example, which has been subject to particular criticism. Amongst other things, it criminalises merely sending eMail to cause ‘annoyance’ or ‘inconvenience’ without defining either term. If its purpose is to protect women from harassment —a justification for its retention— it’s never been explained why it is essential given that there already exist a vast array of other statutory provisions which could be invoked to achieve the same end.

Or consider the Intermediary Guidelines which were issued under the Information Technology Act in 2011, and later diluted by clarification, which (in essence) require intermediaries to take down specific kinds of prohibited content. The primary concern being that the list of prohibited content in the Guidelines closely mirrors similar lists of prohibited content in the Programme Code governing television and the CBFC Guidelines governing films, seemingly not taking into account that content online is not published by a central authority, or that intermediaries may be inclined to play it safe and remove all questionable content given that the list doesn’t lend itself to clear determinations of what would (and wouldn’t!) fall within its scope.

Online speech has come under scrutiny but what it’s important not to lose sight of is that speech online is governed by new and dedicated laws which have merely supplemented (and not supplanted) earlier laws which govern offline speech. And contrary to what the media focus on a few individual laws might have one believe, we have not a problem with a few isolated laws here and there but an entire ecosystem of laws, not so much because they’re all bad laws —only some of them are bad laws— but because they are numerous and difficult to navigate even for a dedicated content lawyer. This lies at the heart of the problem with the regulation of all speech both online and offline.

Even the most cursory glance at our content laws in and of itself effectively makes the case for us to try to have them restructured, rationalised (by repeal or amendment, where necessary) and consolidated, (as the Law Commission appears to have taken the first step towards). Doing so will, without doubt, be hard work. We need nuance, we need detail, and we need to be focussed. What we don’t particularly need is free speech advocacy in the form of supposed one-line axioms, possibly bearing little relation to the law, sometimes being presented as ‘solutions’. Free speech is simply too important for us to be flippant. TShirt-friendly slogans are cool but they aren’t the exclusive need of the hour. We need more than them.

(This post is by Nandita Saikia and was first published at Indian Copyright.)