The confrontation between the modern Moghuls of Internet Age and state is increasingly becoming direct, trenchant and bitter. The state is being made out to be over vigilant and restrictive of free expression. Twitter has gone to Court against the government. Last year WhatsApp did. Social Media platforms are aggrieved as they do not want to submit to the laws of the land. Judiciary has a complex and intractable task at hand. How they deal with it will have far reaching implications. How must one balance the citizenry’s freedom of expression and its vulnerability of getting manipulated by these platforms? The platforms that increasingly resemble a public square need a role- definition, which they believe, only they must do. But there are divergent views. Will the Indian Judiciary rise to the occasion? This brainstorming piece by Uday Kumar Varma precisely examines some of such issues.
The ball has been thrown in Judiciary’s court. The issues are complex and the prognosis is pregnant with potentials, some pernicious and many promising. It will demand judiciary’s most serious consideration, deep understanding, and the most exacting judicial application of law. For, the pronouncements will have a vital bearing on the future of freedom of expression in India. The judiciary will be called upon to ensure that the rights of the citizens are protected as much as they are insulated from being manipulated and managed, that a small minority aided and abated by technologies do not ride rough shod over the sentiments of the countless men and women of the country, that false narratives are discouraged from getting manufactured and mechanisms exist to expose them quickly and comprehensively.
The task is tough and intractable, complex as the factors are that have led us to the present impasse. An added challenge will be the evolution and expansion in last several decades, of the provisions on freedom of expression enshrined in the Constitution. A great deal has happened since these provisions were framed, and the then understanding of expression of thoughts and the perception of information and opinion dissemination. The forefathers could not have envisaged the vicious and virulent aspect of technologies that enable their unimaginably pervasive manipulation and malignant motives, as also their manifold bounteous and benefic advantages that stand bestowed upon us.
Litany of Grievance
Twitter has gone to the court against government orders to block tweets and handles. It has argued that this move of the government is arbitrary and unconstitutional as it impedes and violates the right to free speech of its users. Twitter is not the first of the international giants to seek legal remedy. Last year WhatsApp went before the Court against IT Rules framed by Government of India that enables interference in its end to end encryption regime. They are peeved mainly on two counts. Firstly, they are opposed to the government’s insistence that these companies comply with Indian Laws, and worse, the rules stipulate that the Chief Compliance officer of social media companies will be criminally liable if government orders are flouted.
Understandable as these pain-points are seen from their perspective, the compulsions of the state, expected to carry out its mandate of preserving order, ensuring geographical integrity, societal harmony and political survival, do require objective evaluation. It does not help matters that India is not only the largest democracy but also the most vibrant, which in other words eans a truculent and trenchant political discourse often bereft of reason and vision; and invariably focusing on short term political dividends.
Understanding Public Square
Social Media platforms are increasingly becoming like public squares of olden times. The big difference, however, is that the voices that emerge, and these are voices of all shades, sane and insane, conciliatory and conflicting, virtuous and vicious, integrating and disrupting, are invisible. And unlike public squares of earlier times, which were owned by one and all, these public spaces are owned by international entities that command incredible financial and social clout and whose close ownership makes them accountable only to their shareholders, not to people at large. But, the influence that they exert all around affects everyone. This anomaly and dichotomy between ownership and accountability, between responsibility and authority, between corporate agenda and sense of duty is both stark and worrying.
Government’s Over Reach?
Much is made about the hyper active and overly vigilant response of the government in past few years. Social media corporates argue that the takedown demands in India soared 4,800% between 2014 and 2019 and content blocking orders nearly 2,000%. They also complain about the lack of transparency in the processes accompanying such action. These figures, of course, fail to carry much significance if seen in the context of the pace at which social media has spread its wings in recent years. It also needs appreciation that often the time available to government to respond to damaging and disruptive posts gone viral, and to control further damage, is too short to follow elaborate processes.
And yet, a political overreach has to be curbed as much as the corporate proclivity of financial greed and clout needs to be contained. After all, the temptation and tendency to control and command is both universal and human. Megalomania is no monopoly of a politician or a political leader. A Corporate Moghul is no better or worse than a dictator in such matters. And the evidence is all around us to notice.
Therefore, the onerous and difficult task before the judiciary, first of all, will be to examine and redefine the freedom of the citizenry in the rapidly changing context. The facile option to wriggle out of this unprecedented challenge to hide behind the existing constitutional provisions may not be adequate. It will be their interpretation in the transformed milieu that will tax to the extreme the legal acumen and intellectual strength of Judges. The concept of freedom of speech is a dynamic one, and so are the constitutional provisions that provide it.
Freedom is not Absolute
No freedom is absolute and no right absolutely inalienable, not even the right to live, which several times is extinguished if for example, crimes against humanity is perpetrated. Such extinction is even overwhelmingly endorsed by everyone. The order in nature does not support absolutism of any kind, neither of good or bad, neither of destruction nor creation, neither benefic nor horrific. It favours balance. Balance sustains and nurtures. Absolutes disrupt and destroy.
In fact, Twitter may have done the people of India a great favour by instituting the case against the Government. It’s an opportunity to look at the emerging issues with a new perspective and at a time where so much is so rapidly transforming. Social media is a reality and so also is the reality that human nature seldom opts for superior levels of conduct and self- less pursuit of interests. Resultantly a streak of violence and disruption finds no time to surface given the shield of anonymity. Time may have perhaps arrived for a new deal, an evenhanded view squared to the new realities, for a balanced Modus Vivendi both for the state and the citizenry may as well set in motion a process of dealing with the bounties and betrayals of social media.
The author, Uday Kumar Varma, a 1976 batch IAS officer of Madhya Pradesh cadre, was Secretary Information & Broadcasting, member of the Central Administrative Tribunal (CAT) and member of the Broadcasting Content Complaints Council, a self-regulatory body for general entertainment channels. As Secretary I&B, he spearheaded the nationwide digitisation programme.