1. Justification
Around the world these days, especially in India, social media’s impact on Indian society has created understandable tensions by the way in which social media shapes public conversations, exposing and arguably fostering hate and division while fueling an objectionable image of being termed as anti-nationalists while merely stating views and voicing opinions. The risk is that these tensions become an excuse for restricting freedom of expression, transforming social media from being platforms that enable limitless voices to reach limitless audiences into platforms that are now turning into a gateway for users to be charged under sedition and other such non-bailable offenses merely for voicing their opinions.
In India, a country of over 600 million internet users and the biggest market for both Google and Facebook, these tensions are now crystallizing into a battle between the government and social media platforms. India has the largest democracy in the world and is traditionally a country of cultural diversity, where social media platforms are also currently under significant pressure to remove content that the government considers illegal and a majority of the cases are booked under sedition. But these are dark days for freedom of expression in India as according to Human Rights Watch, in 2020, journalists were targeted for having criticized the government’s pandemic response. As a reply to this, India also imposed the largest number of internet shutdowns globally, with 80 percent of them in Jammu and Kashmir, mostly termed as seditious. The principal battleground is the government’s attempt to tackle the challenges social media platforms pose to Indian society, as codified in a measure known officially as the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. The rules are intended to address disturbing developments- including fake news, distorted images of women, and abusive language, as well as crime, terrorism, and incitement to disturb public order posted on social media. These rules require social media platforms to exercise due diligence processes to ensure they do not host illegal content and allow the government to notify platforms that a specific piece of information is illegal. And when necessary to ensure national security or combat crime, social media platforms must help the government to identify the originators of specified private messages. The rules have received criticism both in India as well as internationally. As regards social media platforms, they raise at least two serious human rights problems.
First, the restriction on permissible content is broader than the list of freedom of speech and expression allowed in the Indian Constitution. Information, if not provided to the government, is considered unlawful and can create a risk of censorship or can result in a political debate.
Second, the requirement that messaging service providers dismantle their end-to-end encryption on government requests in order to identify the original posters of messages may violate the right to privacy. WhatsApp initiated its own proceedings with the ultimate aim of safeguarding the privacy of its users, that the breaking of end-to-end encryption is contrary to the right to privacy mentioned in the Indian Constitution. It is notable that in the second half of 2020, the Indian government made the second-highest number of requests globally for Facebook user data.
Google too reported a significant increase in national security takedown requests by India during 2020.
Under the terms of the new rules, the large social media platforms had to appoint and share the contact details of grievance compliance representatives in India. These representatives will be responsible for adhering to the new rules and responding to grievances and may face liability for noncompliance. The Delhi high court has warned that noncompliance could lead to loss of status and protection as an intermediary of platform users in India. The government sought to restrict how protesters against a proposed agricultural reform law were using social media to organize and spread their cause. The government issued a legally binding order requiring Twitter to remove over 1,100 accounts and posts that were allegedly spreading misinformation about the protests alongside a higher number of people being charged under sedition. Meanwhile, Facebook reported that it restricted access to 878 accounts or posts in response to government directions during the second half of 2020.
On the one hand, the Indian government is right to be concerned about social media’s impact on society as social media platforms have not yet proven themselves up to the task of appropriate content monitoring in all the countries of the world as lack of regulation of social media can lead to an environment in which illegal speech—such as hate speech, discrimination, incitement to violence, and abuse of children—can flourish. But sedition comes under a non-bailable serious offense that is evoked only when the accused has made public speeches that direct the people to rise to revolt through violence against the government and disrupt public harmony. Such serious law should not be revoked unless there is an absolute necessity or a justifiable reason.
Meanwhile, on the other hand, private companies are also equally right to have their own commercial interests at heart, having to walk a tightrope between adherence to their principles and potential exclusion from lucrative markets. Even if, for the sake of argument, it is true that today’s leaders of social media platforms are apolitical, social media platforms are caught in the crossfire of a battle between ruling and opposition political parties, and any action they take will be seen as partisan.
Therefore, the solution lies not in government control of content, but regulations that should require social media platforms to adhere to culturally sensitive content and user behavior, awareness, and literacy about the punishable offenses. The standards imposed by governments on platforms must be consistent with international human rights law and lay down detailed aspects of platform practice, and their independent accountability for implementation. The government, social media platforms, and civil society should now be working together to devise a similar roadmap in unison, not only in India but around the world.
2. Rationale/Logic:
Compared to other offenses, sedition remains a rare crime (it accounts for less than 0.01% of all IPC crimes). But within India, some parts are emerging as sedition hotspots mostly occurring on online mediums. Assam and Jharkhand, for instance, with 37 sedition cases each, account for 32% of all sedition cases between 2014-2018. In Jharkhand, the police have used sedition to charge different types of protesters. In January, more than 3,000 protesters against the Citizenship Amendment Act (CAA) were charged with sedition while in 2019, more than 3,300 farmers were charged with sedition for protesting about land disputes and posting them online.
Although police in these states and elsewhere are charging more people with sedition, especially originating from social media, few cases actually result in a conviction with a rate of 3%. One reason for this could be that sedition as an offense that too via social media has no solid legal grounding in India. The Indian Constitution lays out freedom of expression as a fundamental right which many legal scholars have argued prevents online freedom of speech to sedition from being an offense.
The government has increasingly imposed sedition against critics, intellectuals, activists, filmmakers, students, and journalists, who post content online, with police arguing that words or actions of dissent on social media can also be perceived as a threat to national security. Even though convictions remain rare, police do not need an arrest warrant, making it an easier law to invoke. An accused person is often in custody until the case is taken up by a high court since many lower courts are not empowered to dismiss such cases. After the dismissal, which is generally the case- if not proven guilty, the accused is looked down upon and a feeling of resentment by society follows. In most cases, the accused are termed as ‘anti-nationals’, and their dignity, shelter, and every last strand of livelihood is stripped down even before the judgment is passed.
3. Explanation:
Democracy is worthless without liberty and sedition as understood and enforced by the police and governments is a violation of it. Caution should be added to the term "sedition." After a diligent review of the section, it can be concluded with the statement that in a country like India, where there is a constant rift between the government and its people, many problems arise. The government introduces different types of policies, schemes, plans, etc to which there are numerous uproars and resenting voices of the public, especially on social media platforms against the government alleging that the policies, schemes, plans, etc. are part of the ideological agenda of a ruling political party that takes off the rights of the people. Therefore, conflict is inevitable. In order to control the resenting voices, the government uses different modes, and amongst the law is an important tool and one of those laws is the sedition law. IPC 124-A captioned as ―Sedition is closely allied to treason against the country and many personalities including the Father of the Nation and several freedom fighters have been punished during the imperial rule under the section. But things have undergone significant change after independence. The IPC provision is read with the constitutional provisions to see whether the right to freedom of speech is exercised in permissible limits and whether the action of the State against any person is justified or not.
In 2012 a woman was allegedly arrested for a Facebook post on her profile in which she had questioned why the city had come to a standstill following Shiv Sena leader Bal Thackeray’s death. The post she updated, quoted “With all respect, every day, thousands of people die, but still, the world moves on. Just because one politician died a natural death, everyone just goes bonkers. They should know, we are resilient by force, not by choice. When was the last time, did anyone show some respect or even a two-minute silence for Shaheed Bhagat Singh, Azad, Sukhdev, or any of the people because of whom we are free-living Indians? Respect is earned, given, and definitely not forced. Today, Mumbai shuts down due to fear, not due to respect”, the Supreme Court in its judgment stated that one had to differentiate between advocacy and incitement and that only incitement was punishable. Information that may be grossly offensive or which causes annoyance or inconvenience, are undefined terms that take into the net a very large amount of protected and innocent speech. Thus, words and speech can be criminalized and punished only in situations where it is being used to incite mobs or crowds to violent action. Mere words and phrases by themselves, no matter how distasteful, do not amount to a criminal offense unless this condition is met. Although the Bombay High Court had expressed its intention to make suggestions for codified guidelines that policemen in the state could follow before filing sedition cases to prevent its arbitrary use, the Maharashtra government has failed to bring in these regulations.
Social media primarily serves the purposes of connecting, networking, and voicing our opinions. With more cases arising in the recent past, it is felt that people do tend to overreact on social media to certain situations but it is also true that unless the post contains any seditious activity, individuals should be allowed to voice their personal opinions. The idea or content posted and disseminated is capable of igniting ill feelings and violence among people. In such cases, social media does not necessarily play the role of liberator but instead causes public distress. Therefore Government intervention and vigilance are necessary every now and then to ensure public harmony. The absence of self-verification of facts before posting online is also one of the major contributors to these situations. There can be no such thing as absolute freedom of expression because it could lead to unrest in some form or the other. The Government, therefore, has to serve as a watchdog as a powerful tool like social media can be easily misused to crush the age-old mantra for unity in diversity in a country like India which is a concoction of hundreds of languages and varied religious beliefs.
Graphs and survey
In a small dipstick survey conducted by me, it was found that the majority of the target audience was of the view that they do not have complete freedom of speech and expression on the internet even with the scrapping of IT Act 2000 Section 66A and newer laws like Information Technology Intermediary Guidelines And Digital Media Ethics Code Rule 2021 in place, serious law like IPC Section 124 A - Sedition, should not be invoked for menial reasons and such practice should be mitigated on the initial stage itself i.e. filing of the complaint.
Conclusion:
A total of 10 respondents completed the survey and though the majority of them were in the 22-27 (70%) age group, there were respondents from other age groups as well to give us an idea as to what they thought about internet freedom. Out of these 10 respondents, 30% respondents said that they refrain from posting anything controversial online and another set felt that it was not safe to post anything ambiguous or remotely controversial. Further, a whopping 80% said that owing to past arrests made in the country, they think twice before posting anything on social media networks. More significantly, 100% of the respondents felt that they did not have complete freedom of speech and expression on the internet. On asking about the awareness about the IPC Section 124 (A) - Sedition law, 70% of respondents were unaware of the term and its provisions. On explaining the above section along with Article 19 (1) (A) Freedom of Speech and Expression and the newly introduced Information Technology Intermediary Guidelines And Digital Media Ethics Code Rule 2021, 70% of respondents think that sedition laws through social media or any platform are violative to the Article 19 (1) (A) Freedom of Speech and Expression of the constitution of India. 90% of respondents think that it is not justifiable to arrest someone under sedition law IPC 124 A in a democratic country like India via social media when there are other laws in place to analyze and regulate social media activities. And another whopping 100% of respondents feel that a serious law like sedition should not be invoked for petty charges and such practice should be mitigated on the initial stage itself.
Much is buried and not widely accessed by the public even though it’s archived and available on the internet or on Government websites. Even in some cases, the authority is uncertain as to which law does the crime fall under. Such guidance is not binding and certainly is not universally applied. The survey also brought up certain interesting findings. When asked what suggestions they would give the government to ensure complete freedom of expression online, quite a few of the respondents mentioned that in a democratic country, there can be no such thing as complete freedom of expression because it could lead to unrest in some form or the other. Official involvement and due diligence of the rules should be carried on a grassroots level i.e. the initial stages of filing the complaint. Before invoking such serious allegations and laws, the officials should be thorough with the provisions, double-check the charges that are said to be filed, educate the masses of the correct laws and provisions, and themselves to commence it in practice as well.