A troubling turn to pre-screening

A Supreme Court bench led by Chief Justice Surya Kant nudged the information and broadcasting ministry on November 27 to frame a draft mechanism for pre-screening user-generated content on social media.

Elaborating on the necessity of such a framework, the two-judge bench said, ‘Right to freedom of speech is very important but a regulated right. …If anti-national content is uploaded on social media, by the time the government notices it and orders its takedown…it would go viral and cause damage to, or unrest in, society.’ It also said the right to free speech must be given the ‘widest width’, but since prosecution is a ‘post-occurrence’, there should be a ‘preventive mechanism to prevent misinformation and damage to society’, with regard to social media.

The judges clarified they would not ‘gag expression of views or freedom of speech’, but wanted a ‘reasonable preventive mechanism not to throttle but sieve content’. There was a ‘statutory vacuum’ that needed to be filled.

This judicial order raises several questions, of which we will look at two. First, there is the issue of privacy. In August 2017, a nine-judge constitutional bench hearing the Puttaswami case overturned previous judicial pronouncements and ruled that the right to privacy, being intrinsic to the rights to life and liberty, was indeed a fundamental right. This, read alongside the right to freedom of expression guaranteed by Article 19 of the Constitution, should give the citizenry wide latitude in conducting their quotidian lives and expressing political and ideological positions. We shall return to this point.

The second and related issue is the flagging of ‘anti-national’ content as a reason for pre-screening social-media content. We are all aware of the way in which the current regime has weaponised the concept and rhetoric of ‘anti-nationality’, inventing the vacuous category of ‘Urban Naxal’ to persecute critics. Given its polyvalence, it is easy to manipulate the term anti-national by conflating criticism of the head of the government or the regime with that of the nation or the State. At the proceedings, Prashant Bhushan, one of the advocates, pointed at the definitional problems, but was countered by the Bench, which proposed a hypothetical. Bhushan’s point about questioning the accession of Sikkim or the occupation of Indian territory by China led Solicitor-General Tushar Mehta to protest against secession being instigated during judicial proceedings. This underlines the kind of conflation and weaponisation of fuzzy concepts we are discussing.

In this wider context, it was unfortunate that the Supreme Court, which is tasked with protecting citizens’ rights and freedoms against executive overreach, should have picked precisely the concept that the regime uses to beat them down.

Which brings us to the bigger issue of the protection of fundamental rights generally. Since Independence, most of the time when citizens’ rights and ‘reasons of state’ have come into conflict, the higher judiciary has favoured the exigencies of governments. That has especially been the case with ‘exception-making’ laws, which were smuggled into the post-colonial era from the repressive colonial-era apparatus. Thus, laws for preventive detention, usually against ‘terrorism’, another polyvalent, hard-to-define category, have got a free pass.

Even stringent provisions of laws that at first sight have no obvious exception-making logic, the Prevention of Money Laundering Act and Narcotic Drugs and Psychotropic Substances Act, for instance, have received a judicial imprimatur.

This has created what has been called a permanent state of legal and judicial exception in the country, in which fundamental rights have been rendered vulnerable. Of these rights, the freedom of expression — the critically important right to offend, for instance — has been the biggest casualty.

In the current conjuncture, a majoritarian regime is making the most of the situation. Alongside the right to expression, minority rights are also taking a beating, as are minority groups.

There have, of course, been important pro-rights judgments, as with the admission of the right to privacy into the pantheon of fundamental rights, alongside the judicial support for gay rights, and reservations on the basis of upholding the right to equality.

Unfortunately, there has been no concerted judicial project to build on them to consolidate a rights-friendly body of jurisprudence.

(The writer is author of The Paradox of Populism: The Indira Gandhi Years, 1966-1977).

(Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH).