66A UNCONSTITUTIONAL. Finally!

The Supreme Court, in Shreya Singhal versus Union of India, has stepped to the fore with a delightful affirmation of the value of free speech and expression, quashing, as unconstitutional, Section 66A of the Information Technology Act, 2000 (IT Act). Section 66A had attained particular infamy after the arrests by the Mumbai police in November 2012 of two women who had expressed their displeasure at a bandh called in the wake of Shiv Sena chief Bal Thackeray’s death. Since then, several arrests have been made by different State police, of various individuals, for the most benign dissemination of online content.

The latest in the slew of pernicious cases reportedly booked under Section 66A was the arrest of a class 11 student in Uttar Pradesh for posting, on Facebook, “objectionable” comments apparently attributable to a State Minister. These arrests, aimed at checking even the most harmless cases of contrarianism and dissent, were made possible mostly by the sweeping content of the law. The provision, as is by now well documented, had criminalised the broadcasting of any information through a computer resource or a communication device, which was “grossly offensive” or “menacing” in character, or which, among other things, as much as caused “annoyance,” “inconvenience,” or “obstruction.” In a judgment authored by Justice R.F. Nariman, on behalf of a bench comprising himself and Justice J. Chelameswar, the Court has now declared that Section 66A is not only vague and arbitrary, but that it also “disproportionately invades the right of free speech.”

The right’s scope, the state’s space

This verdict in Shreya Singhal is a hugely important landmark in the Supreme Court’s history for many reasons. It represents a rare instance of the court adopting the extreme step of declaring a censorship law passed by Parliament as altogether illegitimate. But what’s most uplifting about the judgment is that it has explicated to us, with remarkable felicity, the scope of the right available to us to express ourselves freely, and the limited space given to the state in restraining this freedom in only the most exceptional of circumstances. In clarifying the balance between the right and its narrow constraints, the court has struck a vicious blow against the duplicitous stand taken by the state, which consistently represents the right to freedom of speech and expression as a fragile guarantee at best. As Justice Nariman’s opinion has highlighted, the liberty of thought and expression is not merely an aspirational ideal. It is also “a cardinal value that is of paramount significance under our constitutional scheme.”

Not legitimate defences

Article 19(1)(a) of the Constitution guarantees to citizens a right to freedom of speech and expression. The immediately succeeding clause, Article 19(2), however limits this right in allowing the state the power to impose by law reasonable restrictions in the interests, among other things, of the sovereignty and integrity of India, the security of the state, public order, decency or morality, defamation, or incitement to an offence. According to the petitioners in Shreya Singhal, none of these grounds contained in Article 19(2) were capable of being invoked as legitimate defences to the validity of Section 66A of the IT Act. They also argued that the provisions of Section 66A were contrary to basic tenets of a valid criminal law in that they were too vague and incapable of precise definition, amounting therefore to a most insidious form of censorship. Further, in the petitioners’ argument, Section 66A produced a chilling effect that forced people to expurgate their speech and expressions of any form of dissent, howsoever innocuous.

The Supreme Court agreed with the petitioners on each of these arguments. According to the court, none of the grounds, which the state sought to invoke in defending the law, in this case, public order, defamation, incitement to an offence and decency or morality, each of which is contained in Article 19(2), was capable of being justifiably applied. “Any law seeking to impose a restriction on the freedom of speech can only pass muster,” wrote Justice Nariman, “if it is proximately related to any of the eight subject matters set out in Article 19(2).”

Test of danger

Crucially, in rejecting the state’s defence, the court expounded the conditions under which these restrictions could be imposed. For instance, if speech were to be limited on grounds of public order, the law placing such a constraint, the court ruled, has to satisfy a test of clear and present danger. That is any information that is disseminated must contain a tendency to imminently incite or create public disorder, and the information disseminated must be proximately linked to such disorder, for the speech to be restricted. An analogous analysis has been consistently applied by courts in the United States, and, as Justice Nariman points out, American judgments on free speech laws ought to carry “great persuasive value,” in India, since, as a matter of interpretation, the American and Indian Constitution are not as dissimilar on the guarantee of free speech rights, as is popularly believed.

On the purported justification offered by the state on grounds of defamation, incitement to an offence, and decency or morality, under Article 19(2), the Supreme Court, in Shreya Singhal, is pithily dismissive. There is, the court points out, no nexus whatsoever between the criminalisation of “grossly offensive” or “annoying” speech and the restrictions that are permitted under the Constitution, as is rather self evident.

Apart from rejecting the state’s defences under Article 19(2), the court also holds Section 66A unconstitutional for its lack of exactness. It is “obvious that expressions such as “grossly offensive” or “menacing” are so vague,” writes Justice Nariman “that there is no manageable standard by which a person can be said to have committed an offence or not to have committed an offence.” What’s more, according to the court, Section 66A also has the destructive effect of producing a chilling effect on speech in that it tends to not merely impede speech, which is potentially undemocratic, but also innocent communication. Justice Nariman gives us a few examples: “A certain section of a particular community may be grossly offended or annoyed by communications over the internet by “liberal views” – such as the emancipation of women or the abolition of the caste system or whether certain members of a non proselytizing religion should be allowed to bring persons within their fold who are otherwise outside the fold. Each one of these things may be grossly offensive, annoying, inconvenient, insulting or injurious to large sections of particular communities and would fall within the net cast by Section 66A,” he writes. Therefore, the provision, in the court’s belief, was simply indefensible; it contained no immediate nexus with any of the constitutionally sanctioned exceptions to the right to free expression.

Challenging other provisions

The judgment in Shreya Singhal however did not concern itself only with Section 66A. There were other provisions of the IT Act, Section 69A — and its concomitant rules — and Section 79, which were also challenged by the petitioners. The first accords the government the authority to block the transmission of information, including the blocking of websites, when it is necessary or expedient to do so, for among other reasons, the interest of sovereignty and integrity of India, public order or for preventing incitement to the commission of any cognisable offence. And the second grants protection, under certain limited circumstances, to intermediaries (websites such as Facebook and YouTube, for example) for content published by individuals who use their platforms. The court struck neither of these provisions down. It found the law in both instances to contain sufficient safeguards against governmental abuse. Even if one were to consider these aspects of the decision as detrimental, in some way, to our civil liberties, any such concerns, at this juncture, ought to only represent minor quibbles.

Far too often we are deeply critical of our Supreme Court and its decisions. Indeed, the transformation that Professor Upendra Baxi referred to in the backdrop of the movement in the 1980s towards public interest litigation, when he famously remarked that the Supreme Court of India had at long last become the Supreme Court for Indians, was tragically transient. But, in quashing Section 66A, in Shreya Singhal, the Supreme Court has not only given a fresh lease of life to free speech in India, but has also performed its role as a constitutional court for Indians with considerable élan.

Justice Nariman’s judgment shows us that with the right kind of conviction, it is possible to uncover the importance of free speech as a value unto itself within our larger constitutional scheme. That the court has defended the Constitution’s ideals of tolerance with a sense of vivacity and integrity, and that it has provided the jurisprudence of free speech with an enhanced and rare clarity, must give us hope. It must allow us to believe that we can now challenge the noxious culture of censorship that pervades the Indian state. It also shows us that we do not need an American style First Amendment to achieve liberal ideals; what we require, as the court has demonstrated here, is a government that confirms to our own Constitution, which, when viewed in its finest light, affords us the right to freely express ourselves, to dissent and to oppose, to offend and to annoy, free of substantial interference from the state.

MY CHOICE. REALLY?

So, I am a snowflake and a tree and my soul roams around naked. (And unlike you ordinary mortals, I came up with that without any help from superior weed).

I am also 'infinite in every direction' (because clearly, I have not bothered to look up 'infinite' in a dictionary).

If I were married, I would live out every Charlie Sheen aspiration I secretly had and have sex with whoever I want to. I would be the one deciding if I want to have a baby or not, because who the world calls a 'husband' or a 'partner' is basically a sperm dispensing machine.

Ah, now don't come running to me with your 'Feminist of the Century' trophy. The rightful recipients of the same are Vogue magazine and the team who have now come out with a video under their 'Vogue Empower' series called "My Choice". It has been directed by filmmaker Homi Adajania and written by Kersi Khambatta, who wrote Finding Fanny.

A screengrab from the video.

Apart from a painfully gorgeous Deepika Padukone smiling beatifically at you - not even slightly discomfited by the fact that her hair is billowing mid-air like clothes hung out to dry in monsoon winds - there are apparently 99 women in the video. You could have mistaken it for a Dove commercial in black, if not for Padukone's voice-over telling us what makes an empowered woman as opposed to simply a glowing-complexioned one.

So then, what does make a truly empowered woman? Having the right to have sex whenever and with whoever? And wear whatever and return home whenever?

Where's the woman who demands equal leadership opportunities at the work place? Where's the woman who has had the guts to give up a well paying job to bring up a child? Where are the women who have chosen to work, perhaps all day as domestic helps, because they want their sons and daughters to finish their education and have different lives? The most significant choices in life have had to do with education, financial independence and the power to support our families instead of sex, clothes and staying out.

In fact, the Vogue video only speaks for a small group of women for whom education, healthcare, money are privileges they can take for granted as birthrights. But if social media is anything to go by, the video is the new Bible of feminism. "I am the universe. That is my choice," Padukone pronounces in the conclusion of the video.

Apart from making women sound a bit like that Shaktimaan villain howling 'Andhera Kayam Rahein', the video which claims to 'empower' women, sadly, does so in the language of the same patriarchy it is trying to eviscerate.

While we suspect that the video wanted to urge women to be themselves, it insinuates that all men will gang up and come in their way. Like some upholders of patriarchy would like to believe about men, this video tells you women are the real sh**. While the truth is, feminism, in its simplest definition says women and men are equal in a society, not more, not less. Just because patriarchy can treat women as possessions and accessories, feminism definitely doesn't ask you to treat the men in your life with as much respect as a television remote.

"Remember the bindi on my forehead, the ring on my finger, adding your surname to my name, they are all ornaments. They can be replaced, my love for you cannot. So treasure that," Padukone says, right after saying that it is her choice to 'love temporarily, or lust forever'.

Through the course of the video it becomes clear that it is meant to be a monologue aimed at men. An 'us' and 'them' exercise. Also, one in which it has been already determined that we are better than them. It suggests that men are inevitably at odds with choices women make in their lives.

I was 20 when I landed by first job at a newspaper desk in Kolkata. "I have to go to work at 5 in the evening and will return not before 3 am," I declared to my gobsmacked parents who were then unaware of how a newspaper office worked. "How will you stay awake?" my father muttered, before quickly scribbling down the office phone number as I rolled my eyes and waved my newly-acquired safety device - the mobile phone - at him.

At three in the morning, our bustling, talkative middle class south Kolkata neighbourhood slept in squeaky silence and the familiar walls of my house looked decidedly Hogwarts-ish with long shadows. For two long years, the father stayed up to fetch me from the office car which would not enter narrow bylanes. My mother was a teacher at a morning school and could not stay up that late. In my father's world women who held jobs worked "normal" safe hours until I came along. But he adjusted. It was a choice I didn't make alone, it's a choice we made together. And I know that's not just my father, that's many many other Indian men. And it's completely unfortunate that the Vogue video, with its black and white stereotyping, cannot understand that simple fact.

Modi's visit to Indian Ocean backyard

Prime Minister Narendra Modi will be on a three-nation trip this week which will take him to the Seychelles, Mauritius and Sri Lanka – three key Indian Ocean island nations. There were suggestions that the prime minister will be visiting Maldives as well but it was dropped from the itinerary after the arrest and incarceration of the country’s first democratically elected president and current opposition leader Mohamed Nasheed in an expression of India’s disapproval of these moves. Indian Prime Minister is likely to step up his nation’s military and civilian assistance to the Seychelles, Mauritius and Sri Lanka during his visit in an effort to balance China’s growing imprint in the region, which has built highways, power plants, and seaports in these small island nations. India envisages its role as a net security provider in the Indian Ocean region and towards that end it is providing patrol ships, surveillance radars and ocean mapping for the island states.

The visit of the Indian Prime Minister to the nation’s maritime neighbors is reflective of India’s desire to shore up its profile in the Indian Ocean region, a region long considered India’s backyard but where New Delhi’s influence has been eroding slowly but steadily. China has extended a quiet challenge to India’s preeminence in South Asia through diplomatic and aid efforts directed at the small island nations dotting the Indian Ocean. While China, Japan, South Korea and Southeast Asian nations fight over specks of islands and reefs in East and South China Sea, mainly because of undersea resources, islands in the Indian Ocean are emerging as a new focus for struggle between China and India.

China has also been busy forging special ties with island nations on India’s periphery including Sri Lanka, Seychelles and Mauritius. China’s attempt to gain a foothold in the Indian Ocean came into view in 2012 when reports emerged of an offer from Seychelles – a strategically located island nation in the Indian Ocean – to China for a base to provide relief and resupply facilities to the People’s Liberation Army Navy. Though promptly denied by Beijing, the offer underscored the changing balance of power in the region. India has traditionally been the main defense provider for Seychelles – providing armaments and training to its Peoples’ Defense Forces, or SPDF. India extended a $50 million line of credit and $25 million grant to Seychelles in 2012 in an attempt to cement strategic ties. The Indian Navy has also been making regular forays into the island nation’s surrounding waters.

During Modi’s visit, the two states will be signing a pact on mapping of the waters around the archipelago and further cementing their defense ties. In Mauritius, the Indian Prime Minister will be the chief guest at Mauritius’s National Day celebrations and will commission a 1300-tonne Indian-built patrol vessel, the Barracuda — India’s first ever export warship. New Delhi plans to supply 13 more warships to Mauritius.

Modi’s trip to Sri Lanka will be the first in 28 years by an Indian Prime Minister and it comes at a time when China’s growing presence in Sri Lanka has suffered a setback with the defeat of Mahinda Rajapaksa and the victory of Maithripala Sirisena in the presidential elections earlier this year in January. The Sirisena government has made its desire public to correct Rajapaksa’s tilt towards China and has already made some significant overtures towards India. The new President has visited India as his first trip abroad which resulted in a civil nuclear energy cooperation pact. The Sirisena government has also underlined that it would have a “different approach” than the previous Rajapaksa government which allowed a Chinese submarine to dock in Colombo in September 2014, raising heckles in New Delhi. In a move that risks diplomatic row with is largest trading partner, Sri Lanka has suspended a $1.5 billion Chinese luxury real estate project in Colombo, the biggest of several Chinese investments in Sri Lankan ports and infrastructure. Though the Sri Lankan government has suggested that the deal lacked transparency and did not meet environmental standards, India too had expressed its concerns about the project. During his visit, Modi will be addressing the Sri Lankan parliament and will be visiting several Sri Lankan cities, including Jaffna which was the de-facto capital of the LTTE till their defeat in 2009.

With the rise in the military capabilities of China and India, the two are increasingly rubbing against each other as China expands its presence in the Indian Ocean region and India makes its presence felt in East and Southeast Asia. Though Indian policymakers are now ready to acknowledge that both the South Asian and Indian Ocean regions are rapidly being shaped by the Chinese presence, the Modi government wants to push back by enhancing its diplomatic and defense presence in the regional states.

The great game of the 21st century is likely to be played out on the waters of the Indian Ocean. China has upped the ante with its ambitious $40 billion Maritime Silk Road project aimed at connecting China with communication lines in the Indian Ocean and the larger Asia-Pacific region. India is only now beginning to take this challenge seriously. The Modi government is gearing up to tackle the China challenge in India’s backyard. It remains to be seen if it will be successful in this endeavor. Modi’s trip this week will provide some important pointers.