India’s Government Draws Ire for Trying to Pull “a China” Online

India is estimated to have 121 million internet users, of which 43 million users are on Facebook, 3.6 million on Google Plus and 3.5 million on Twitter. The move to “muzzle” social content—which seems impracticable given the number of users—has generated outpourings of rage against the Minister of Communications and Information Technology, ironically enough on the same social networking sites that he seeks to stifle.

One aspect of the government’s demands—relating to “obscene” and/or “offensive” depictions of religious figures—does not come as surprising, and is hardly unprecedented in the Indian context. Article 19(1) (a) in India’s Constitution guarantees that all citizens shall have the right to freedom of speech and expression. Article 19 (2), however, provides that the State might make laws—which must be duly enacted by the Legislature, not imposed by executive fiat—imposing “reasonable restrictions” in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offense.

Given India’s uniquely potent mix of competing regional, religious, linguistic, caste-based and ethnic loyalties, the government’s moves to impose “artificial” harmony and to immunize discourse to some extent from “hate speech” have been countenanced in the past. This is not to say that such moves are unproblematic, but let’s leave this aside for now. What is astounding is the Government’s audacious move to screen and block content “offensive” and/or “insulting” to political leaders, such as the Prime Minster, or the President of the ruling Congress party.

Commentators point out that this is simply the culmination of the Government’s  increasingly aggressive and intolerant stance against any attacks on political leaders. In 2008, two men were arrested for posting derogatory content on a social networking site about Congress President Sonia Gandhi. The pretext that such moves help maintain social cohesion and political stability—ostensibly by protecting the sensibilities of party loyalists—seems, at least on preliminary reflection, to be akin to the crude line of reasoning that the police cannot fairly be expected to provide an assault-free environment for women who choose to dress “provocatively.”

In any credible democracy—with its avowed emphasis on individual fulfillment and robust participation in the public domain—vicious and even inflammatory criticism directed at the polity’s “institutions” and public figures and officials is not only to be tolerated, but often celebrated as the mark of a vibrant system. The correct response for the government is to focus on its real obligations of providing a safe environment for people to exercise their core constitutional rights to criticize, demean, lampoon, and even vilify those in positions of power and influence.

The Indian Supreme Court, in R. Rajagopal v. State of T.N. (1994), held that “the Government, local authority and other organs and institutions exercising power” cannot bring a defamation suit for damages, unless they can show its falsity and a “reckless disregard for the truth.” It also observed that because public officials do not have a right to privacy, they cannot seek damages for statements that discuss their official conduct.

India’s chattering classes seem prepared to fight this move tooth and nail. They must vigilantly contest the Government’s efforts in this ongoing battle of attrition to expand its permissible sphere of action and curtail precious and hard-won entitlements. Too often has the citizenry rolled over and played dead when the Government seeks to impose free speech restriction online unrelated to concerns of genuine incitement of violence—the 2009 banning of online cartoon porn sites depicting the conquests of a sexually liberated housewife exemplified the paternalistic, moralistic and political underpinnings of many free speech restrictions in India.

It is only through these processes of vigorous confrontation and contention between state and civil society that the scope and vitality of constitutional rights is tested and fortified. Whether this takes the shape of demanding a constitutional amendment to the wide-ranging bases for restrictions under Article 19(2), or a more expansive interpretation of the “reasonableness” of such restrictions,  India’s political community must defeat this illicit transgression.