ESSAY FODDER-- EDITORIALS-- the hindu

ESSAY FODDER—the hindu

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LAPSES IN THE SHREYA SINGHAL’S LANDMARK JUDGEMENT:

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The judgment — striking down as unconstitutional Section 66A of the IT Act of 2000 — by the Supreme Court Bench of Justices J. Chelameswar and R.F. Nariman in the Shreya Singhal case, is seen as a landmark judgment.

It is regarded as heralding the birth of new free speech jurisprudence and restoring the public space for dissent in India.

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ANAMOLIES

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###1.   DISTINCTION HAS BEEN MADE, BUT NOT A FINER ONE:

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3 TYPES OF FREE SPEECH AND EXPRESSION[discussion, advocacy and incitement ] mentioned in the judgement. But, not made a fine distinction between them.

For example,  the “discussion” entered into by one can be used by another to “incite” simply by quoting the discussion and saying “this is what he has said”. 

Writer Perumal Muruganhad to face such ire in January 2015 in Tamil Nadu because of a novel he wrote as did T.J. Joseph, a lecturer in Kerala, who had his hand cut off in 2010 for a question he had set in an examination.

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###2.  NO ABSOLUTE DISTINCTION B/W “SPEECH” AND “EXPRESSION”

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while it elaborates on the need to protect speech and the written word, it has little to say on expression especially in its many forms of photographs, paintings, films, cartoons, etc.

So, while a Facebook post gets protection, a painting does not.

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###3. DISTINCTION MADE B/W PRINT AND DIGITAL MEDIA: ON QUANTITATIVE GROUNDS RATHER QUALITATIVE::

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 It appears to accept this distinction on quantitative grounds, i.e., how many people can be reached and how fast, rather than on qualitative grounds, i.e., what is being said.

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KEY TAKEAWAYS OF THE JUDGEMENT::

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1.       Dismissal of the assurances given by government on the ground that the law cannot be based on the assurances of any regime in power.[THE GVT HAD SAID THAT-- even if certain portions of the law — 66A — were vague, the government, being committed to free speech, would not use the section to curb free speech.] The law cannot be based on even the bona fide intentions of a government and has to exist independent of these intentions.

2.      The role of the judgement in educating the public about the government’s mind by placing the key aspects of the government’s submission in the public domain.

3.      And the third relates to their observation that “vagueness” in the formulation of laws produces a tyranny of power.

4.       The few areas of weakness in the judgement should not, however, detract from the judgment’s significant contribution to free speech especially in these dark times of censorship.

It is without doubt a great judgment and will soon become the touchstone for new free speech jurisprudence in India. The hecklers will be in retreat.

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