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ABSTRACT
In India, the world’s largest democracy, the right to express dissenting opinions has come under increasing pressure due to governmental reactions to violent and non-violent activities and opposition. As well as direct suppression, a concerning trend has arisen whereby individuals and groups may choose to self-censor rather than risk the consequences of speaking out. These outcomes are related in this paper to the treatment of social media, where official policies and laws regulate and censor content on social media on the dubious basis that it is ‘offensive’ or ‘objectionable’. These restraints often lack clear guidelines and are applied arbitrarily, leading to a chilling effect on free speech and the expression of dissenting views. Furthermore, India lacks a comprehensive legal framework to address hate speech, resulting in a patchwork of provisions within the Indian Penal Code that inadequately define and circumscribe hate speech. This article contends that the ‘freedom to criticise’ should be legally better protected to ensure that diverse opinions can be safely held and expressed in order to maintain and reflect the pluralistic nature of Indian democracy.
Acknowledgements
The authors would like to take this opportunity to acknowledge the extremely useful comments made on draft versions of this piece by Clive Walker, Alexander Fischer, Katherine Pearson, Stefan Fafinski, Philip Leith, Ian Cram, and Indira Carr. The authors would also like to thank both Shrudula Murthy of NALSAR University of Law and Samriddh Sharma of WBNUJS for their research and editorial assistance in the early stages of this paper.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Correction Statement
This article has been corrected with minor changes. These changes do not impact the academic content of the article.
Notes
1 Bhagwat, Ashutosh, and James Weinstein, ‘Freedom of Expression and Democracy’ in Adrienne Stone, and Frederick Schauer (eds), The Oxford Handbook of Freedom of Speech, Oxford Handbooks (2021; online edn, Oxford Academic, 10 February 2021) <https://doi.org/10.1093/oxfordhb/9780198827580.013.5> accessed 22 July 2023.
2 H Ellis-Peterson, ‘What is the BBC Modi Documentary and Why is it so Controversial?’ (The Guardian, 14 February 2023) <https://www.theguardian.com/world/2023/feb/14/why-is-bbc-report-on-narendra-modis-handling-of-sectarian-riots-in-2002-so-controversial> accessed 22 July 2023
3 As of 2022, India ranks 150 in the World Press Freedom Index, which evaluates a total of 180 countries; Reporters Without Borders, ‘World Press Freedom Index’ (Reporters Without Borders, 2022) <https://rsf.org/en/index> accessed 20 February 2023.
4 The Constitution of India, 1950, art 19(1)(a) (India).
5 John Stuart Mill, On Liberty (London: Longman, Roberts & Green, 1869; Bartleby.com, 1999).
6 Mill (n 5).
7 See I Cram, Liberal Democracy, Law and the Citizen Speaker: Regulating Online Speech (Bloomsbury Publishing 2022) 232; See also N Adams, ‘The Ideal Speech Situation,’ Habermas and Theology (Cambridge University Press 2006).
8 See Cram (n 7).
9 The philosopher Habermas might characterise this as an ideal speech situation – untainted by internal and external constraints or coercion. See also Adams (n 7).
10 The Constitution of India, 1950, art 19(2) (India). The First Amendment to the Constitution of India added some of these restrictions due to the Supreme Court’s verdict in Romesh Thappar v State of Madras AIR 1950 SC 124 (India).
11 Cram argues, although not directly linked to the Indian constitution, that there is no inherent right to avoid offence. He delves into the legality and constitutional validity of using ‘offence’ to justify limiting free speech via legal enforcement. He questions the limitation of expressive activities by national authorities on the grounds of offence to sincerely held religious beliefs. See Ian Cram, ‘The Danish Cartoons, Offensive Expression, and Democratic Legitimacy’ in Ivan Hare and James Weinstein (eds), Extreme Speech and Democracy (Oxford Academic 2009) 311–30.
12 See Human Rights Watch (2021) India: Government Policies, Actions Target Minorities, <https://www.hrw.org/news/2021/02/19/india-government-policies-actions-target-minorities>.
13 See Freedom House (2023) India Report <https://freedomhouse.org/country/india/freedom-world/2023>; See also R Kumar, G Bhatia, N Roy, E Wadsworth-Jones, S Tripathi, C McCann, and E Riddell Bamber (n.d.). India Pursuing Truth in the Face of Intolerance (Pen International, 2018).
14 See, ‘Internet Shutdowns in India 2022 • Software Freedom Law Center, India’ (Software Freedom Law Center, India • Defender of Your Digital Freedom, 17 May 2023) <https://sflc.in/internet-shutdowns-india-2022/> accessed 24 July 2023.
15 R Kathuria, M Kedia, G Varma, K Bagchi, and R Sekhani, ‘The Anatomy of an Internet Blackout: Measuring the Economic Impact of Internet Shutdowns in India’ (2018) Indian Council for Research on International Economic Relations (ICRIER) 31 <http://icrier.org/pdf/Anatomy_of_an_Internet_Blackout.pdf.> accessed 24 July 2023.
16 J Bajoria, ‘“No Internet Means No Work, No Pay, No Food”’ (Human Rights Watch, 14 June 2023) <https://www.hrw.org/report/2023/06/14/no-internet-means-no-work-no-pay-no-food/internet-shutdowns-deny-access-basic> accessed 24 July 2023.
17 ‘Human Rights Commission Issues Notice to Manipur on Women Being Paraded Naked’ (India Today, 20 July 2023) <https://www.indiatoday.in/india/story/human-rights-commission-issues-notice-to-manipur-on-women-being-paraded-naked-2409540-2023-07-21> accessed 24 July 2023.
18 Saraswat Kashyap, ‘Manipur Violence: 2 Women Gang-Raped, Killed on Same Day of Video Incident’ (India Today, 22 July 2023) <https://www.indiatoday.in/india/story/manipur-violence-alleged-rape-abduction-murder-of-two-women-2410387-2023-07-22> accessed 24 July 2023.
19 S Kodali, ‘We Can’t Look Away from Internet Shutdowns in Manipur’ (The Wire) <https://thewire.in/rights/we-cant-look-away-from-internet-shutdowns-in-manipur> accessed 24 July 2023.
20 Anuradha Bhasin v Union of India WP (Civil) 1031 of 2019.
21 Indian laws regulating internet shutdowns employ vague language and lack sufficient checks to uphold necessity and proportionality principles. The absence of effective accountability or judicial and parliamentary oversight allows frequent misuse and arbitrary decisions. India’s central and state governments are permitted to restrict or temporarily suspend internet services using the Indian Telegraph Act, 1885, and the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. Three-member Review Committee headed by Cabinet Secretary at the central level and Chief Secretary at the state level reviews the telecom/internet shutdown orders by the central government and the state government, respectively <https://prsindia.org/policy/report-summaries/suspension-of-telecom-services-internet-and-its-impact#:~:text=Review%20Committee%3A%20Under%20the%202017,and%20the%20state%20government%2C%20respectively>.
22 C Thathoo, ‘Social Media Platforms Banned in Bihar’s Saran District until Feb 8’ (Inc42 Media, 7 February 2023) <https://inc42.com/buzz/social-media-platforms-banned-in-bihars-saran-district-until-feb-8/> accessed 24 July 2023.
23 Weapons of control, shields of impunity: Internet shutdowns in 2022, See <https://www.accessnow.org/internet-shutdowns-2022/>.
24 Knee-jerk reaction from the Government of India allowed the prosecution of executives from intermediaries like Twitter, Google and Facebook for objectionable content posted online; See Ministry of Electronics and Information Technology, Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
25 Indian Penal Code was enacted in 1860 by the British colonial administration. It contains provisions to act against threats of sedition, and obscenity to impose Victorian values. The objective of these provisions was to subjugate and control the Indian subjects. In Independent India, these same provisions are used to crack down on social liberalism and dissent.
26 Shreya Singhal v Union of India AIR 2015 SC 1523 revolves around the fundamental right of ‘Freedom of Speech and Expression enshrined under Article 19(1) (a) of the Indian Constitution.
27 See, PR Brass, Production of Hindu-Muslim Violence in Contemporary India (Univ of Washington Press 2015).
28 Christophe Jaffrelot, ‘India’s Democracy at 70: Toward a Hindu State?’ (2017) 28(3) Journal of Democracy <https://www.journalofdemocracy.org/articles/indias-democracy-at-70-toward-a-hindu-state/> accessed 23 July 2023; See also, Zoya Hasan, ‘Mass Violence and Wheels of Indian [In]justice’ in Amrita Basu and Srirupa Roy (eds), Violence and Democracy in India (Seagull Books 2006).
29 Edward Anderson and Christophe Jaffrelot, ‘Hindu Nationalism and the “Saffronisation of the Public Sphere”: An Interview with Christophe Jaffrelot’ (2018) 26(4) Contemporary South Asia <https://www.tandfonline.com/doi/abs/10.1080/09584935.2018.1545009> accessed 23 July 2023.
30 Taniya Sarkar, ‘Hindutva: The Dominant Face of Religious Nationalism in India’ in Nadim N Rouhana and Nadera Shalhoub-Kevorkian (eds), When Politics are Sacralized: Comparative Perspectives on Religious Claims and Nationalism (Cambridge University Press 2021); See also Aditi Bhatia, ‘The ‘Saffronisation’ of India and Contemporary Political Ideology’ (2020) 39(4) World Englishes <https://onlinelibrary.wiley.com/doi/abs/10.1111/weng.12494>
31 Audrey Truschke, ‘Hindutva’s Dangerous Rewriting of History’ (2020) 24/25 South Asia Multidisciplinary Academic Journal <https://doi.org/10.4000/samaj.6636> accessed 19 February 2023.
32 Jaspal Singh, ‘The Sociolinguistic Saffronisation of India’ in Irene Theodoropoulou and Johanna Tovar (eds), Research Companion to Language and Country Branding (Routledge 2020).
33 See Martha C Nussbaum, The Clash Within: Democracy, Religious Violence, and India’s Future (Harvard University Press 2007).
34 Shakuntala Banaji, ‘Vigilante Publics: Orientalism, Modernity and Hindutva Fascism in India’ (2018) 25(4) Journal of the European Institute for Communication and Culture <https://www.tandfonline.com/doi/full/10.1080/13183222.2018.1463349> accessed 23 July 2023.
35 The authors of the book, ‘Majoritarian State’ argue how Hindutva activists exert control over civil society via vigilante groups, cultural policing and violence. As this majoritarian ideology pervades the media and public discourse, it also affects the judiciary, universities and cultural institutions, increasingly captured by Hindu nationalists. Angana P Chatterji, Thomas Blom Hansen and Christophe Jaffrelot (eds), Majoritarian State: How Hindu Nationalism is Changing India (Oxford University Press 2019).
36 Ibid.
37 Kent Roach, The 9/11 Effect (Cambridge University Press 2011).
38 Abhinav Chandrachud, Republic of Rhetoric: Free Speech and the Constitution of India (Penguin Books 2017) 13.
39 Queen Empress v Bal Gangadar Tilak ILR (1898) 22 Bom 112.
40 Nivedita Saxena and Siddhartha Shrivastava, ‘An Analysis of the Modern Offense of Sedition’ (2014) 7(2) NUJS Law Review <http://nujslawreview.org/2016/12/03/an-analysis-of-the-modern-offence-of-sedition/> accessed 23 July 2023.
41 James Chiriyankandath, ‘“Creating a Secular State in a Religious Country”: The Debate in the Indian Constituent Assembly’ (2000) 38(2) Journal of Commonwealth & Comparative Politics <https://www.tandfonline.com/doi/abs/10.1080/14662040008447816> accessed 23 July 2023.
42 (1962) Supl.(2) SCR. 769.
43 W.P. (Criminal) No. 154/2020.
44 W.P. (C) No. 682/2021.
45 ibid.
46 In 2020, several activists and students were charged with sedition for their alleged involvement in the protests against the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC). See Kapoor (2022).
47 Constitutional Assembly Debates, 7 December 1948, speech by DAMODAR SWARUP SETH <https://eparlib.nic.in/bitstream/123456789/762993/1/cad_07-12-1948.pdf> accessed 20 February 2023; See also Arun K Thiruvengadam, The Constitution of India: A Contextual Analysis (Bloomsbury Publishing 2017).
48 Ibid.
49 Constitutional Assembly Debates, 1 December 1948, speech by KT Shah.
50 Constitutional Assembly Debates, 29 April 1947.
51 Constitutional Assembly Debates, 4 November 1948.
52 Gautam Bhatia, Offend, Shock, or Disturb: Free Speech under the Indian Constitution (Oxford University Press 2016), 137.
53 Gitlow v New York 286 US 652 (1925).
54 Ronald J Krotoszynski, The First Amendment in Cross-cultural Perspective (New York University Press, 2006); Sandra Fredman, Comparative Human Rights Law (Oxford University Press 2018).
55 The Constitution of India, 1950, art 19(2) (India).
56 This will be looked at in the next subsection.
57 Chandrachud, supra note 21, p.30.
58 Bidyut Chakrabarty, ‘BR Ambedkar and the History of Constitutionalizing India’ (2016) 24(2) Contemporary South Asia <https://www.tandfonline.com/doi/abs/10.1080/09584935.2016.1195338> accessed 23 July 2023; See also R Kruthika, ‘Freedom of The Press: A Constitutional History – Centre For Law & Policy Research’ <https://clpr.org.in/blog/freedom-of-the-press-a-constitutional-history/> accessed 17 August 2022.
59 See e.g. Romesh Thappar v State of Madras AIR 1950 SC 124; Express Newspapers (Pvt.) Ltd. v Union of India AIR 1958 SC 578; Bennett Coleman & Co. Ltd. v Union of India AIR 1973 SC 106.
60 See Indibility Creativity v State of West Bengal AIR 2019 SC 191, the bench consisting of DY Chandrachud and Hemant Gupta noted that contemporary events revealed that there was a growing sense of intolerance, which curtailed and threatened the freedom of speech in the country.
61 The Constitution of India, 1950, art 19(2) (India); The Constitution (First Amendment) Act, 1951, cl 3.
62 Brij Bhushan v State of Delhi, AIR 1950 SC 129 (India)
63 Romesh Thappar v State of Madras AIR 1950 SC 124 (India).
64 The Constitution of India, 1950, art 19(2) (India); The Constitution (First Amendment) Act, 1951, cl 3.
65 The State of Bihar v Shailabala Devi AIR 1952 SC 329 (India).
66 The judgement points out the fact that discerning whether certain speech would threaten public order and peace is subjective. For instance, Mukherjea J stated that the phrases used would be capable of either interpretation and that an ordinary person would in all probability not be incited by the passage.
67 Ramjilal Modi v The State of U.P AIR 1957 S.C 620 (India).
68 Tarunabh Khaitan, ‘Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-State Fusion in India’ (2020) 14 Law & Ethics of Human Rights 49.
69 Subhradipta Sarkar, ‘Right to Free Speech in a Censored Democracy’ [2009] 7 Sports and Entertainment Law Journal 62.
70 (2012) 10 SCC 603, para 25.
71 Law Commission of India, Hate Speech (Report No. 267, 2017) para 6.27.
72 (2012) 5 SCC 1, para 35.
73 (1950) SCR 594 (India).
74 See Express Newspapers (Private) Ltd. v Union of India AIR 1958 SC 578 (India); See also Sakal Papers (P) Ltd. v Union of India AIR 1962 SC 305 (India).
75 David Wootton, Modern Political Thought: Readings from Machiavelli to Nietzsche (2nd edn, Hackett Publishing Company 2008) 605
76 Wootton (n 75).
77 Mayur Suresh, ‘The Slow Erosion of Fundamental Rights: How Romila Thapar V. Union Of India Highlights What is Wrong With The UAPA’ (2019) 3 Indian Law Review <https://www.tandfonline.com/doi/abs/10.1080/24730580.2019.1640593> accessed It has been noted that even though there might not be statistics to show the numerous people convicted of offenses under these acts, the primary purpose of anti-terror provisions is to detain the prisoners as opposed to obtaining conviction. The mere apprehension caused due to the numerous detentions under these provisions prove that there is an inherent risk to this freedom in the country.
78 Unlawful Activities (Prevention) Act, 1967 (India).
79 The Armed Forces (Special Powers) Act, 1958 (India).
80 Dolly Kikon, ‘The Predicament of Justice: Fifty Years of Armed Forces Special Powers Act in India’ (2009) 17(3) Contemporary South Asia 271–82, doi:10.1080/09584930903108937, see also S Baruah, ‘Routine Emergencies: India’s Armed Forces Special Powers Act’ in Civil Wars in South Asia: State, Sovereignty, Development (2014) 189–211.
81 Anushka Singh, ‘Criminalising Dissent: Consequences of UAPA’ (2012) 47(38) Economic and Political Weekly <https://www.epw.in/journal/2012/38/commentary/criminalising-dissent.html> accessed 24 July 2023
82 The Wire, ‘UAPA: 72% Rise in Arrests between 2015 and 2019’ The Wire <https://thewire.in/government/uapa-72-rise-in-arrests-between-2015-and-2019> accessed 20 February 2023.
83 §124A, The Indian Penal Code, 1860, No 45, Imperial Legislative Council, 1860.
84 Balwant Singh v State of Punjab, 1994 Supp (2) SCC. 67.
85 Shreya Singhal v Union of India AIR 2015 SC 1523.
86 AIR 1962 SC 955, para 27.
87 Nalin Mehta, ‘Redefining ‘Azadi’ in India: The Prose of Anti-Sedition’ (2016) 7(3) South Asian History and Culture 322.
88 See United States v. Rhodes, 610 F. Supp. 3d 29 (D.D.C. 2022); See also US v Bertino 1:22-cr-00329 (DC) (United States); US v Lebron 222 F 2d 531 (1955) (United States).
89 Ayesha Pattnaik, ‘Loyalty, Liberty, and the Law: Analysing the Juxtaposition of Nation and Citizen in the Indian Sedition Law’ (2022) 31(6) Social and Legal Studies <https://doi.org/10.1177/09646639221086859> accessed 22 February 2023.
90 ibid.
91 On 11th August 2023 Government of India introduced two new Bills to reform IPC (1857), CrPC (1858), Indian Evidence Act (1872). Bharatiya Nagarik Suraksha Sanhita, which will replace the Code of Criminal Procedure, and the Bharatiya Sakshya, which will replace the Indian Evidence Act. Bharatiya Nyaya Sanhita, which will replace the Indian Penal Code. Section 150 Bharatiya Nyaya Sanhita proposes to replace Section 124A of IPC. The proposed section is focused on acts that promote secession, armed rebellion, subversive activities, or endanger the sovereignty, unity, and integrity of India. It is broader in scope, capturing a wider array of activities beyond just ‘disaffection’. Specifies that the acts should be done ‘purposely or knowingly’, indicating a clear and deliberate intent. In addition to the it specifically includes ‘electronic communication’ and the ‘use of financial means’, making it more comprehensive in today’s digital and financial world. However, it broadens the scope to include exciting secession, armed rebellion, subversive activities, encouraging feelings of separatist activities, and endangering the sovereignty, unity, and integrity of India. Although this is a welcome development, but it still does not guarantee that the proposed law will not be misused to supress dissent and infringe freedom of speech and expression. Ultimately, the courts will play a vital role in determining how this section is applied. If they interpret it narrowly, then only severe, and clear acts against the state would be penalised, potentially leaving room for dissent and free expression. However, a broad interpretation could curtail such freedoms.
92 Indibility Creativity v State of West Bengal AIR 2019 SC 1918.
93 The Cinematograph (Amendment) Bill, 2021.
94 Proviso to Section 6(1) of the Bill deals with such revisional powers of the Central Government. It states that the Central Government has the power to direct the CBFC to re-examine the film in it feels that the principles enshrined in Section 5B of the Cinematograph Act are violated by such certification.
95 S. Rangarajan and Ors. v P. Jagjevan Ram and Ors (1989) 2 SCC. 574. A similar resonance is also observed in Justice DY Chandrachud’s judgement in Indibility. He holds,
Political freedoms impose a restraining influence on the state by carving out an area in which the state shall not interfere. Hence, these freedoms are perceived to impose obligations of restraint on the state. But, apart from imposing ‘negative’ restraints on the state, these freedoms also impose a positive mandate. In its capacity as a public authority enforcing the rule of law, the state must maintain the conditions in which these freedoms flourish. In the space reserved for the free exercise of speech and expression, the state cannot look askance when organised interests threaten the existence of freedom. The state is duty-bound to ensure the prevalence of conditions in which those freedoms can be exercised. The instruments of the state must be utilised to effectuate the exercise of freedom.
96 (1981) 2 SCC 600, para 16.
97 Arunava Sinha, ‘Perumal Murugan and the Politics of Literary Oppression’ (Sydney Review of Books, 28 April 2015) <https://sydneyreviewofbooks.com/essay/perumal-murugan-and-the-politics-of-literary-oppression/> accessed 24 July 2023; See also S. Tamilselvan v Government of Tamil Nadu (2016) SCC Online 5960 (Madras). The Learned Judge, while firmly asserting the positive responsibly of the State to protect the rights of alternative voices like Murugan, asserted,
We do believe that a clear distinction has to be carved out between situations involving the right to expression of an individual or a body of individuals as opposed to a routine law and order tension. Even in matters of this nature, the State may endeavour to diffuse the situation but not permit proponents of free speech, authors and artists, as the case may be, to be put under pressure by surrounding circumstances. On the other hand, the endeavour should be to preserve the rights of expression through other modes.
98 Ananya Vajpeyi, ‘The Triumph of the Hindu Right: Freedom of Speech and Religious Repression in Modi’s India’ 93 Foreign Affairs 150.
99 Quint Entertainment, ‘After Controversy, Akshay’s ‘Laxmmi Bomb’ Renamed To ‘Laxmii’ (The Quint, 2020) <www.thequint.com/entertainment/bollywood/after-controversy-akshay-kumar-laxmmi-bomb-renamed-laxmii>
100 See J Maria Agnes Sasitha, ‘Youth Perception on Hate Crimes, Hate Speeches and Nationalism in Contemporary India’ in H Kury and S Redo (eds) Crime Prevention and Justice in 2030 (Springer, Cham 2021) <https://doi.org/10.1007/978-3-030-56227-4_3>
101 See Ektaa Malik, ‘#boycottFabIndia: Clothing brand pulls ad after latest campaign sparks row’ (The Indian Express, 20 October 2021) <https://indianexpress.com/article/lifestyle/fashion/boycottfabindia-trends-after-clothing-brands-latest-ad-campaign-goes-viral-fabindia-jashn-e-riwaaz-diwali-7579103/> accessed 20 February 2023.
102 See C George, Hate Spin: The Manufacture of Religious Offense and its Threat to Democracy (MIT Press 2016) 83–110.
103 #BoycottNetflix had been trending on Twitter in India. A youth leader from the ruling party, Gaurav Tiwari, told reporters that he had complained against it. The complaint accuses Netflix of committing ‘deliberate or malicious acts intended to outrage religious feelings’. See Michelle Toh, ‘Netflix faces boycott calls in India over ‘A Suitable Boy’ kissing scene’ (CNN, 25 November 2020) <https://edition.cnn.com/2020/11/23/media/a-suitable-boy-netflix-india-intl-hnk/index.html> accessed 20 February 2023.
104 (2016) 7 SCC 221.
105 See Mahesh Langa and Sandeep Phulkan ‘Rahul Gandhi gets two-year jail term in defamation case’ (The Hindu, 23 March 2023) <https://www.thehindu.com/news/national/modi-surname-remark-surat-court-convicts-rahul-gandhi-in-defamation-case/article66651933.ece> accessed 24 July 2023.
106 (2013) 7 SCC 653.
107 India’s Supreme Court suspended Mr Gandhi's conviction on the 4th of August 2023. Supreme Court noted that the reasons the trial judge gave the maximum punishment of two years to Mr Gandhi ‘are without sufficient reasons and grounds’. The Court stayed his two-year jail term till the larger questions in the appeal were decided by the appellate High Court <https://www.scobserver.in/journal/rahul-gandhis-criminal-defamation-conviction-and-sentencing-unjustified-says-supreme-court/>.
108 Walker and Weaver (2014).
109 Madhyamam Broadcasting Limited v. Union of India, 2023 SCC OnLine SC 366 <https://main.sci.gov.in/supremecourt/2022/6825/6825_2022_1_1501_43332_Judgement_05-Apr-2023.pdf>
110 Madhyamam Broadcasting Limited v. Union of India, 2023 SCC OnLine SC 366. <https://main.sci.gov.in/supremecourt/2022/6825/6825_2022_1_1501_43332_Judgement_05-Apr-2023.pdf>
111 David Wootton, Modern Political Thought: Readings from Machiavelli to Nietzch (2nd ed, Hackett Publishing Company 2008) 605.
112 The Indian government is evidently concerned about the reach of the platforms like Netflix and Amazon Prime, as these platforms perhaps unwittingly have become a space for dissent and critique.
113 Human Rights Watch, ‘World Report 2021: India Events of 2020’ <www.hrw.org/world-report/2021/country-chapters/india> accessed 29 July 2022.
114 Ibid.
115 Nishant Shah, ‘Digital Infrastructure, Liminality, and World-Making Via Asia: (Dis) information Blackouts: Politics and Practices of Internet Shutdowns’ (2021) 15 International Journal of Communication 2693.
116 Anuradha Bhasin v Union of India, AIR 2020 SC 1308.
117 Ghulam Nabi Azad v Union of India and Anr. W.P. (C) No. 1164/2019 (India).
118 Anuradha Bhasin v Union of India, AIR 2020 SC 1308.
119 Devdutta Mukhopadhyay and Apar Gupta, ‘Jammu & Kashmir Internet Restrictions Cases: A Missed Opportunity to Redefine Fundamental Rights in the Digital Age’ (2020) 9 Indian Journal of Constitutional Law 207.
120 Manish Singh, ‘India is restoring 4G internet in Jammu and Kashmir after 18 months’ (Tech Crunch, 5 February 2021) <https://techcrunch.com/2021/02/05/india-is-restoring-4g-internet-in-jammu-and-kashmir-after-18-months/> accessed 20 February 2023.
121 Sonal Rawat and Dritih Ganjoo, ‘Farmers Protests in India Lead To Unconstitutional Internet Shutdown’ (Human Rights Pulse, 22 March 2021) <www.humanrightspulse.com/mastercontentblog/farmers-protests-in-india-lead-to-unconstitutional-internet-shutdown> accessed 20 February 2023.
122 Ashlesh Biradar v State of West Bengal W.P.A.(P) No. 104/2022 (India).
123 People’s Union For Civil Liberties v Union of India (1997) 1 SCC 301.
124 Raju Prosad Sarma v State of Assam W.P.(C) No. 5527/2022 (India).
125 ibid
126 It was alleged that between 2018 and 2021, State Governments like Gujarat, Rajasthan, Arunachal Pradesh, Assam and West Bengal had issued around fifteen suspension orders. The Software Freedom Law Centre challenged the arbitrary imposition of these shutdowns.
127 Software Freedom Law Center, India v State of Arunachal Pradesh & Ors W.P.(C) No. 314/2022 (India).
128 W.P.(C) 13037/2019 (Delhi). Another indicator of intolerance is requests by the government to social media platforms to take down materials. IT Rules of 2021 (formally known as the Information Technology (Guidelines for Intermediaries and Digital Media Code of Ethics) Rules, 2021) Section 16 allows for content to be blocked in emergencies. Using this provision Ministry of Information and Broadcasting filed takedown requests to prevent access to a BBC documentary series titled India: The Modi Question that investigates prime minister Narendra Modi's policies and actions toward India's Muslim minority.
129 Shreya Singhal v Union of India AIR 2015 SC 1523.
130 Information Technology Act, 2000, s 66A (India).
131 Information Technology (Intermediary) Rules, 2011, 314€ (India).
132 Secretary, Ministry of Information and Broadcasting, Government of India and others v Cricket Association of Bengal and others (1995) 2 SCC 161.
133 Myspace Inc v Super Cassettes (2017) 236 DLT 478 (DB).
134 Amazon Seller Services Pvt. Ltd. v Amway India Enterprises Pvt. Ltd (2020) 267 DLT 228 (DB).
135 Sabbu Mathew George v Union of India W.P. (C) No. 341/2008 (India).
136 Information Technology (Digital Media and Ethics) Rules, 2021, 139(E) (India).
137 Another indicator of intolerance is the ‘selective’ requests by the government to social media platforms to take down materials under IT Rules of 2021 Section 16 allows for content to be blocked in emergencies. Using this provision Ministry of Information and Broadcasting filed takedown requests to prevent access to a BBC documentary series titled India: The Modi Question that investigates prime minister Narendra Modi's policies and actions toward India's Muslim minority.
138 Internet Freedom Foundation, ‘Explainer: Why India’s new rules for social media, news sites are anti-democratic, unconstitutional’ (Scroll.in, 27 February 2021) <https://scroll.in/article/988105/explainer-how-indias-new-digital-media-rules-are-anti-democratic-and-unconstitutional> accessed 20 February 2023.
139 Rishi Iyengar, ‘Twitter is Stuck between a Rock and a Hard Place in India’ (CNN Business, 10 February 2021) <https://edition.cnn.com/2021/02/09/tech/twitter-india-government-farmer-protests/index.html> accessed 20 February 2023.
140 Devika Sharma, ‘People Would Be Starved of Liberty of Thought if … Know Why Bombay HC Partly Stayed the IT Rules, 2021’ (SCC Online, 16 August, 2021) <https://enalsar.informaticsglobal.com:2167/blog/post/2021/08/16/information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021-4/> accessed 20 February 2023.
141 Kim Lane Schepelle, ‘Autocratic Legalism’ (2019) 85(2) University of Chicago Law Review 545.
142 Madhav Khosla, ‘The Possibility of Modern India’ (2021) Global Intellectual History <https://doi.org/10.1080/23801883.2021.1962582> accessed 19 February 2023. Khosla in this paper also points out how the rise of an unregulated non-legal force often resulting in extra-legal violence has been on the rise since the ascent of the Modi Government in 2014.
143 Amit Prakash, ‘Shadow of the Pandemic and the Beleaguered Liberal-Democratic Script in India’ (2021) 20(2) India Review 104.
144 Alakh Alok Srivastava v Union of India W.P. (Civil) No. 468/2020.
145 Ibid.
146 Shameek Sen and Shouvik Kumar Guha, ‘The Struggles of the Indian Constitution in the Face of Autocratic Legalism: Constitutionalism at Crossroads?’ (2022) 50(3) Federal Law Review 275.
147 Several sections in the Indian Penal Code are widely used and abused to ban works of art, films, and books. See Human Rights Watch, ‘Stifling Dissent: The Criminalization of Peaceful Expression in India’ (24 May 2016) <www.hrw.org/report/2016/05/25/stifling-dissent/criminalization-peaceful-expression-india> accessed 20 February 2023.
148 Tarunabh Khaitan, ‘Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-State Fusion in India’ (2020) 14 Law & Ethics of Human Rights 49.