Babasaheb Ambedkar, Chairman of the Drafting Committee, presenting the final draft of the Indian constitution to Constituent Assembly President Dr. Rajendra Prasad on 25 November 1949. Image Source: link
Central to the process of learning is of course questioning, and this is what I propose to do today. There is one central theme to my presentation. It is encapsulated in a single word – liberty. When we speak of liberty, we usually mean a direct reference to Article 19 of the Constitution of India. This is in Part III of the Constitution. The whole of this is captioned Fundamental Rights. There are therefore a variety of rights, all said to be fundamental. And we now understand this to mean essential to the framework of the Constitution, or what is called its basic structure. Now the signal value of liberty is actually not just tucked away in Article 19. My argument is that the whole of the Constitution is predicated on this concept and we find this and its other sister concepts in the Preamble, that single page that gives us the framework. It states the intention of this document we call the Constitution. It tells us who, what, how, why. “We the people of India” speaks of our redemption of a pledge, of our tryst with destiny – you all know those words – and it speaks of our resolve to secure to all citizens justice of every stripe and then – now mind this – in the Preamble, liberty of thought, expression, belief, faith and worship. Notice the sequencing. Many of you here write code. You put code in a particular sequence for a particular reason. Think of the Constitution as code. That sequencing has a purpose, it has a reason. It is our task to discover what that purpose and what that reason is. First, justice of every kind, and then liberty, and within liberty, thought and expression come right at the very top. Having made all these resolutions and with this intent, we adopt, enact – and again this is key – give to ourselves our constitution. No government gave it to us, no ruling party made a gift of it to us, we secured it for ourselves. This is central to an understanding of fundamental rights. They are not gifts, they are ours, and we have secured them to ourselves.
Now the signal value of liberty is actually not just tucked away in Article 19. My argument is that the whole of the Constitution is predicated on this concept and we find this and its other sister concepts in the Preamble, that single page that gives us the framework. It states the intention of this document we call the Constitution.
Now assume that we have this Part III Fundamental Rights under a microscope on one of our lab slides. I want to close in now on one or two of these. I want to look at Article 19, and even there, I want to narrow my focus further. Right above Article 19 are the words, Right to Freedom. It’s an unusual phrasing, and in my understanding of it, this speaks directly to another facet of liberty. Remember that our Preamble speaks of liberty of thought, expression, belief, faith and worship? Belief, faith and worship are covered by other articles. Article 19 speaks of the protection of certain rights regarding freedom of speech, etc. Now mark this – freedom of speech is pushed up into the heading even though Article 19 has many other freedoms listed in it. The other keyword here is ‘protection.’ In common understanding, one can only protect that which one already has. This is therefore not a gift. It is not something given by the Constitution, we already had these rights even before the Constitution.
Article 19 speaks of the protection of certain rights regarding freedom of speech, etc. Now mark this – freedom of speech is pushed up into the heading even though Article 19 has many other freedoms listed in it. The other keyword here is ‘protection.’ In common understanding, one can only protect that which one already has. This is therefore not a gift. It is not something given by the Constitution, we already had these rights even before the Constitution.
How? Where did they come from? These are rights that are fundamental to human existence. They are ours at birth, they are ours by virtue of birth, they exist outside the Constitution. These rights are not even given by the Constitution, they are secured from assault by the Constitution. Now let us turn back to Article 19 and its listed rights. The very first of these is the right to freedom of speech and expression. This right is not absolute. The same Article’s next clause, 19(2) [says] that the state may impose reasonable restrictions on it in the interests of – again crucial – certain defined objectives, sovereignty and integrity of India, friendly relations with other states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. And this takes us directly to the stress points against freedom. I will take some of these restrictions, the ones with the greatest immediacy and place before you the questions that arise.
The global Internet changed everything.
To understand what these new emergent stress points are, we should look at how our society has changed since the late 1980s, the period commonly accepted as the rise of the global Internet. The global Internet changed everything. In law, we have a set of standard tropes or memes. We used to call them tropes though I am partial to the word ‘meme’ not only because of its deep association with all things tech, but because it’s a neologism attributed to Richard Dawkins, very much a man of science, and he uses it to mean an idea, behaviour or style that spreads from person to person within the culture. The culture we are concerned with today is the Internet and the meme is actually an imported trope. I speak, of course, of the law’s ‘common man’ that everyday individual, he of average intelligence and imperfect recollection, or in common law countries what is known as ‘the man on the Clapham omnibus.’ In our country, our closest parallel might be R.K. Laxman’s dhoti-clad common man. He is everywhere, he’s as perennial as the grass, he is always silently observing. The law tests itself again and again against the standards of this common man irrespective of his choice of transport, to see what it is that the law allows him to do and what it is that the law demands of him. The global Internet changed our common man. It did something that hasn’t been done in the history of mankind. It gave him the tools to become a single central powerhouse of ideas, thoughts, expressions and opinions. It gave him immediacy, it afforded him instant publicity. It made him an expert on anything he fancied and it gave him the option of anonymity to be whoever or whatever he wanted, to transmogrify, to change gender, age, preference, to be anybody or to be nobody.
The global Internet changed our common man. It did something that hasn’t been done in the history of mankind. It gave him the tools to become a single central powerhouse of ideas, thoughts, expressions and opinions. It gave him immediacy, it afforded him instant publicity. It made him an expert on anything he fancied and it gave him the option of anonymity to be whoever or whatever he wanted, to transmogrify, to change gender, age, preference, to be anybody or to be nobody.
Instantly this is a head-on collision with the ideas embedded in the Constitution. And here is the first of our many challenges. What law applies to actions done in the digital or virtual world? This is a very different world from the bricks and mortar world of the Constitution. Let us have a look at some of the instances of before and after. Before the global Internet, if you wanted to express an opinion on anything, you had to find yourself a journal or a publisher. Letters to the editor had to go in hard copy. They took time, they took effort. Most of all, there was no assurance of publication at all. Now the same article that you see in print in your newspaper or magazine today is also available instantly online in parallel, and those whose comments or views would almost certainly never have seen the light of day in print can now push them out online and have them displayed instantly with the barest of moderation or editorial control, often none at all. This is true also of publishing videos, music, photographs, art work, pseudo-technical and pseudoscientific papers, cock-eyed theories of interpretation, and of course the propagation of propaganda, hoaxes and myths. In the days before the global Internet, much and perhaps even all of this was utterly impossible.
The second major inflection point was, of course, the advent of social media and sharing networks. From what began as a network for college students, Facebook is now a behemoth that embraces all kinds of communication, text, images, video and including most recently with some very strange results, news feeds or fake news feeds. Now given relatively low penetration and low computer literacy, none of this might have had quite the impact that it has but for the third major shift bringing all these technologies and facilities straight into your hands in the form of smartphones and hand-held devices. Everything that you needed a computer rig for earlier is now built into what is nothing but an amped-up telephone.
The Internet unlike anything before is liberating. It has given us, every one of us freedoms undreamt, liberties unconceived and unspoken.
What this has done to our common man, R.K. Laxman’s common man. Now we are focusing on what our Constitution says is fundamental, our right to freedom, and this is the truth that no one wants to face. This is the 900-pound gorilla in the room. The Internet unlike anything before is liberating. It has given us, every one of us freedoms undreamt, liberties unconceived and unspoken. There was a time when, to paraphrase one of my favourite writers, Julian Barnes, our greatest pleasure was the pleasure of anticipation. Would my letter to the editor or my article be accepted for publication? Would my photograph be printed? Would people like my art work? Now, you see something you like? Your phone camera will take the shot and you can Instagram it or Snapchat it, or whatever. And yes, you can say pretty much whatever you want. Can you? What happened to those restraints in Article 19(2), those state-driven reasonable restrictions in the name of morality, decency, contempt of court and defamation?
Let’s turn to film censorship. There is a statute that governs this, the Cinematograph Act, and it says in Section 4 that this board, not a censor board but a film certification board, can order excisions or modifications before issuing the film a certificate. Now the certificate is for public unrestricted viewing – so it’s a U certificate, A certificate, and so on. The rationale for this is that our common man is not ready for what the film shows. His mind is immature, his imagination is feverish and febrile, his morals are easily corrupted and twisted. Therefore we need this Board to tell us what we can and cannot see.
So imagine this. A handful of completely randomly chosen people with no qualifications whatsoever sit in a room and decide when they see something that is not appropriate for the common man…who is this common man? – us, everyone here in this room…these four, five, six people, men and women with no great achievements, no exceptional abilities will decide that your minds trained at IITs, though you may have a string of alphabets after your name, you’re too immature to watch a film. We cannot watch it because it will corrupt us and it will bend our minds to the unspeakable. All right. But here’s the thing. This Board is completely ineffective in the one way that most counts today. It has no dominion on the Internet, it has no power at all. You can make any movie you want and put it out on YouTube, Vimeo, or anything else provided you adhere to what? Not what the Cinematograph Act says, not what the Constitution says, but what YouTube’s terms of service say. Your cable TV or set-top digital box shows movies that are certified by this great board. Does Netflix? What happens if you decide to visit the Internet’s dark side? More precisely, what happened to those limits in the name of morality and decency in Article 19(2)? Did the global Internet just stretch our right to freedom of speech and expression beyond what our founding fathers conceived? Where exactly did our Constitution go? Have we reached the outer limits of its remit? Will the writ of the Constitution not run in the virtual or digital world? If it does, how far can it go, how far will it go?
We have here a situation where technology is forcing the law to change. The law is scrambling to keep up, and it’s not doing a terribly good job of it.
We have here a situation where technology is forcing the law to change. The law is scrambling to keep up, and it’s not doing a terribly good job of it. Our IT Act tried to introduce a section to deal with intimidating emails and electronic communications, but it did it thoughtlessly and without even a passing nod to the Constitution. The Supreme Court dealt with this firmly and with the Act’s invocation of fuzzy, imprecise, unscientific terms like annoyance, nuisance, and so on. But the problem with [the IT] Act is that it doesn’t address fundamental issues at all. It creates its own mythology with no understanding of technology.
The definitions in this Act are endlessly self-referential, and one wonders whether the draughtsman of this act was playing a joke by creating a legal version of one of M.C. Escher’s drawings or Kurt Gödel’s mathematical theorems. Have a look. Now, I’m just going through this quickly, all right? – “Access with its grammatical variations and cognate expressions means gaining entry into, instructing or communicating with the logical, arithmetical, or memory function resources of a computer, computer system or computer network.” I don’t know if this makes any sense to you, it makes no sense to me. I have to interpret this. All right. Computer — of course we must now define what is a computer–“means any electronic, magnetic, optical or other high-speed data.” [W]hat happens if it’s low speed or medium speed? We don’t know. Data processing device and high speed in comparison to what? An abacus?
Data means – careful now –“representation of information, knowledge, facts, concepts or instructions” — nobody knows what facts are, thank God it hasn’t said the truth because that would have been complicated–“which are being prepared or have been prepared in a formalised manner.” This is supposed to be data. Suppose it’s not formalised, suppose it’s unsorted, it’s not data? All right. That’s your definition of data. It says it improves information. But guess what? This Act also has a definition of information and it says, “Information includes data and messages and text and images.” And then electronic forms with reference to information means information generated, sent, received, but doesn’t include data.
To craft a statute around technology demands skill and a profound understanding of the nature of technology, the limits of law, and the mandate of constitutional guarantees.
To craft a statute around technology demands skill and a profound understanding of the nature of technology, the limits of law, and the mandate of constitutional guarantees. You cannot simply take a technology, be in terror of it, and then slap together a statute. This is like trying to put together tacky, temporary software patches. The real trouble with the IT Act is that it locks itself into a technology that was already outdated when the statute came into force. It did not begin to anticipate the security levels we demand today in online commerce and even in online use of free speech tools. [The] reason behind this kind of a knee-jerk reaction in law is that a vast majority of lawmakers and judges fear technology. Even in daily routines, judges insist on paper manual corrections, constant rewriting. Consider for a moment in this institute of technology the inherent absurdity of this process. A draft order dictated in court is taken down manually, then digitized, then manualised and turned into hard copy, manually corrected, then re-digitized [and] turned back into hard copy. This goes on through several iterations, and then it is finally digitized. It is hard to think of anything more inefficient than this.
One of the most problematic areas from direct freedom of speech perspective is the role of intermediaries and the question of regulating, banning, censoring and controlling online content. Again, the law fails us.
One of the most problematic areas from direct freedom of speech perspective is the role of intermediaries and the question of regulating, banning, censoring and controlling online content. Again, the law fails us. It does not recognise the difference between shared content and hosted content and treats all of this exactly equally. There is no understanding at all at least in statute of the limits of the roles of intermediaries. Can they self-censor? Only because they host content are they obliged to censor? According to what law? If the content is hosted on servers situated in Sweden or Papua New Guinea or Togo, but is viewed here in India, which law will apply? What if content there is legal, but the same content here is not? We constantly call for bans — ban this, ban that — we’re a nation of bandits, but under what portion of Article 19(2) are we demanding these bans? Remember, the entire article applies to citizens. It does not begin to contemplate this blurring of geographical and national boundaries or the lifting of territorial limitations.
Consider the question of obscenity. No one knows what this is of course, and the law has developed many tests over the years. Our own track record is less than stellar. Half a century ago, the Supreme Court told us that D.H. Lawrence’s Lady Chatterley’s Lover was an obscene book. That was very soon after the Constitution was adopted. Five decades later I wonder [w]hat, for instance, would that Supreme Court have made of today’s Fifty Shades of Grey? But that is about changing societal mores. All this material, and more and more are available online, much of it is free, is readily available for download on your computers, cellphones, and pretty much any device. Again, where did that restraint in Article 19(2) go?
[N]othing arouses passion and anger so much as defamation and religion. And it is here that we find our biggest confrontation. Now that we can propagate freely and widely, everything we say is potentially defamatory or likely to inflame or injure religious sentiments. No longer do we need proof in support of an accusation against another person. No longer do we need to carefully consider our thoughts before making a perfectly wild statement about an entire religion or its adherence. This has the predictable consequences — swift and draconian police action, arrests, and all the rest. The Supreme Court attempted a curb on this, but to no great effect despite its judgment being an outstanding piece of jurisprudence.
Here, the problem is reversed. What happened to the protection of Article 19(1)(a)? That right to freedom of speech and expression guaranteed by our Constitution? We must if we are to retain the true intent of Article 19(1)(a) move ourselves to a higher standard. This is what Dr. Ambedkar said on the moral imperatives of our Constitution. “A paramount reverence for the forms of a constitution, enforcing obedience to authority, and acting under and within those forms, yet combined with the habit of open speech of action subject only to definite legal controlled and unrestrained censure of those very authorities as to all their public acts.” Let me stress some of these words again. – “Combined with the habit of open speech.” Not just an entitlement to be exercised when we find ourselves agitated by something; a habit, something to be done daily, routinely. – “Unrestrained censure of those very authorities as to all their public acts.” What does that tell us? That we must…unmindful of consequences and perhaps confident in the security the Constitution provides, at every stage we must unreasonably question authority. Umbrage is everywhere, everyone is offended.
[W]hat we see today is a burgeoning of the tyranny of outrage, real or imagined. But this throws up another very real challenge to our Constitution and asks us to question what it is that Article 19 intended. The challenge is to redraw the boundaries of what is offensive. Do we mean personally offensive, or do we mean offensive to us as a society? Child abuse or animal abuse or sexual abuse or snuff porn are examples of societal offensiveness. Critiquing even harshly a hard-held religious opinion may not fall into that class. So what the Internet does is to open up the boundaries of what is and is not acceptable. Does the right to freedom of speech and expression include the right possibly to offend, and does it carry with it the bounden duty not to be offended? When we discuss this we are in a very grey zone between Article 19(1)(a) and 19(2). The one protects our freedom, the other allows limitations on it. This is because we are not here directly concerned with state-driven restrictions in the name of decency, morality, etc. We are in the realm of wrongdoing an individual’s feelings or offending his sentiments. The Internet should teach us to accept divergence of views and to defend the right to disagree. We find instead the Internet allowing or even encouraging us to conform to deep-seated prejudices and preconceived notions. Is this what the Constitution contemplated? Does this weaken the constitutional guarantee of free speech?
Let me return for a moment to that ultimate tech toy, the hand-held smart phone. It can take photographs, make movies, allow you to post almost anything that you want anywhere. Since we’re testing the limits of freedom, let’s see how they hold up with this armoury and arsenal in our hands. Let’s say you take a photograph, a selfie. You post it to a friend on a one-on-one in a messaging application like WhatsApp. Your friend is perhaps less a friend than you think, or perhaps sub-optimally discreet. He thinks it’s wonderful what you’ve created and funny, and he sends it on without your permission to a dozen others. Now these dozens of friends of friends send it on to their dozens of friends of friends, and the chain explodes, it has gone viral. What is your liability and to whom? What happened to your right, your freedom to express yourself as you did in a fearless, free manner? Why should you have to suffer not just opprobrium or castigation, but possible legal action for a wholly unintended consequence?
And there is finally one other article that in my view is equally if not more essential, Article 21, the right to personal liberty and freedom. This is a standalone provision that says “none,” no person – not no citizen –“may be deprived of his life or liberty except according to the procedure established by law.”That right to life is multidimensional. Over time, it has come to include the right to shelter, the right to a wholesome environment – incidentally, a jurisprudential leap that no other country I know of has made – and even the right to sleep. But does it include the right to privacy? Does it include the right to be forgotten? In an age where your digital footprint tells more about you than you could imagine, this may be vital. What is to be made of inroads by governments in the form of government surveillance, and what kind of government is it that feels it necessary to spy on its own people? We may be hunting the snark a bit here. Perhaps the answers to these and other questions are ones we will never receive. That does not mean that we should stop asking them. The technology of the Internet is the now and it is ceaseless in its change. The concepts of the Constitution were fashioned then, a very long time ago. Have they withstood time? Have they survived the judgment of history, the most terrible judgment of all? Do we need now to revisit and redefine these freedoms, those we secured to ourselves so many years ago? Refusing to address these questions is unacceptable, it imperils our future. We must answer them because that I believe is the only way we can secure to ourselves that most fundamental of all rights, our individual and collective liberty.
(This lecture was given on March 25, 2017. Visit this page for the full audio recording.)