The current face-off between the government and the popular microblogging site, Twitter, is being keenly watched by millions of Indian citizens because of its implications not just for the preservation of fundamental rights as ordained by our Constitution, but for safeguarding healthy democratic traditions and India’s sovereignty.
Until now, it appears as if those who manage Twitter’s policies are missing the point, namely that all companies that wish to do business in India have to do so within the parameters of the country’s Constitution and the laws made by our Parliament. Whatever be the company’s rules and guidelines, they will, for ever, have to be subordinate to the laws of the land. All this has to be said ab initio and with such firmness because Twitter is trying to superimpose its own understanding of “freedom of expression” on our Constitution.
It all began with the government asking Twitter to take down 1,178 accounts with links to Pakistan and Khalistan supporters who were spreading misinformation and provoking the farmers. The government issued an order directing Twitter to remove tweets with the highly offensive and blatantly dishonest hashtag “farmergenocide” and accounts supported by Khalistan sympathisers and backed by Pakistan. Twitter did not comply immediately. In recent days, Twitter has sought to address the government’s concerns, but only partially and the government has taken note of Twitter “grudgingly and unwillingly” trying to comply with the government’s orders.
Another example that the government held up was of the infamous “toolkit” that had been posted on Twitter to inflame passions in India during the farmers’ agitation. Twitter was told about the misuse of its platform to create disharmony and unrest in India. The government and the Indian people have also noticed the double standards employed by Twitter while handling the violence on Capitol Hill in Washington on January 6 and the violence at the Red Fort in New Delhi on January 26. So, the perpetrators of violence are guilty only if they are “right-wing”.
On the other hand, if they and their backers are left-wing and the government is perceived to be “right-wing”, the perpetrators of violence are not guilty. They are just exercising their fundamental rights!
For the benefit of officials of Twitter, it needs to be explained that Article 19(1)(a) gives all citizens “freedom of speech and expression”. However, this right is circumscribed by Article 19(2), which says that this right does not prevent the state from making laws that impose “reasonable restrictions” on its exercise in the interests of “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 of incitement to an offence”.
These “reasonable restrictions” were introduced by India’s first Prime Minister Jawaharlal Nehru via the first amendment to the Constitution in 1951 because he felt that freedom of speech and expression in Article 19(1)(a) was too free-wheeling and resulting in disturbance to public order, defamation of citizens and incitement to commit offences. And while all this was on, the government would have to be a helpless spectator, with no constitutional right to intervene in such situations. Finally, Parliament settled on this compromise of imposing “reasonable restrictions”, thus leaving the door open to courts to determine whether the response of the government was reasonable or not.
The microblogging site has taken the strange line that it has not blocked civil society activists, politicians and media as it would “violate” their fundamental right to free expression guaranteed by the country’s law. It said it would continue to support the right to free expression. Twitter has to realise that it is just an intermediary and cannot interpret “freedom of speech and expression” to suit its agenda. It must strictly function within the parameters of India’s Constitution and the laws made by our legislature.
What are the parameters within which “freedom of expression” operates in India? This is best explained by Durga Das Basu while citing the famous judgement of Justice Mukherjea of the Supreme Court in A K Gopalan v. State of Madras. He said: “There cannot be any such thing as absolute or uncontrolled liberty wholly freed from restraint for that would lead to anarchy and disorder. The possession and enjoyment of all rights ….. are subject to such reasonable conditions as may be deemed to the governing authority of the country to be essential to the safety, health, peace, general order and morals of the community. What the Constitution, therefore, attempts to do in declaring the rights of the people is to strike a balance between individual liberty and social security”.
He concludes by explaining what Article 19 does—it lists the individual liberties and the restraints that may be placed on them “so that they (individual liberties) may not conflict with public welfare and general morality”. This is our constitutional position, and what matters to us are the words of Justice Mukherjea and our Supreme Court in these matters. We do not want and we will not allow a supra Twitter Court to emerge. Our Constitution is supreme and the law is what the Supreme Court of India says it is. No company or corporation, Indian or foreign, can be allowed to imagine itself to be above these entities. Nor should it pretend to be defending our fundamental rights. We, the citizens of India, are fully capable of taking care of ourselves and our sovereignty.
A SURYA PRAKASH (suryamedia@gmail.com)
Vice-Chairman, Executive Council, Nehru Memorial Museum & Library