Will regulation of internet content not be pre-censorship?

No one could deny that the concern over adult content has a basis, and it is destroying the childhood of millions, and orienting the young towards undesirable things. However, the obscenity needs to be discussed more maturely. Could the yardsticks imposed by the religion be followed by every member of the society? Has the evolution of social morality over the course of human history rendered many of these yardsticks obsolete?

The Supreme Court's view that the government should regulate online content is not one to be celebrated. The Supreme Court asks for the institution of an autonomous body for the purpose. The apex court says it should be neutral and independent. Is it not strange that the Court mentions such words as “autonomous”, “independent” and “neutral” in present era when the prime challenge before poets, artists, academics and journalists is to protect their freedom of speech?

Have judicial verdicts during the last decade been able to generate any confidence? Is the Court not giving the government a handle to curb the right to free expression that has accidentally fallen into the hands of the people? Is the SC not aware of how the government has silenced the dissenting voice through institutional and extra-institutional means? Has the Supreme Court not followed a pattern wherein its ideas conform to the view of those who are ruling the country?

The Supreme Court is satisfied with the self-regulation and considers it ineffective. It wants a preventive mechanism. "Freedom of speech is an invaluable right, but it cannot lead to perversity," says the Chief Justice of India.

"Right to speech has to be respected, suppose there is a programme, if it has adult content, so some warning in advance must be there," he says.

No one could deny that the concern over adult content has a basis, and it is destroying the childhood of millions, and orienting the young towards undesirable things. However, the obscenity needs to be discussed more maturely. Could the yardsticks imposed by the religion be followed by every member of the society? Has the evolution of social morality over the course of human history rendered many of these yardsticks obsolete? Do we not know that the present ruling class in India and elsewhere are trying to force us to follow a medieval value system?

We have seen how, on many occasions, the Court has failed to protect ordinary people from being pushed towards subordination to the majoritarian moral codes. The opposition to celebrating Valentine's Day and attacking people and asking people to chant religious slogans is an example. These incidents are examples of censorship imposed by non-state actors, and the Court must feel concerned about them. Let us go through the social media content of Indian origin.

We find a large percentage of it emanates from a hatred-filled ideology that targets the minorities and people sympathising with them. These contents display an overt rejection of modern values. They also violate the traditional values that do not accept using vulgar language, even against opponents. Are they less potential threats to the moral balance a civilised world needs? The Court has been found lacking in action against them.

Does the case that has attracted considerable attention from the Court deserve the same? The insensitivity shown by the comedians needed a proper condemnation and due legal intervention. It is inconceivable that the Court should make it the basis for a regulatory mechanism that would affect the freedom of expression in general.

Justice Joymalya Bagchi says, "Where the content is perceived as anti-national or disruptive of society's norms, will the creator take responsibility for it? Will self-regulation be sufficient? The difficulty we are facing is the response time. Once the scurrilous material is uploaded, by the time the authorities react, it has gone viral, to millions of viewers, so how do you control that?"

Prashant Bhushan, who was appearing for a disability rights activist, rightly expressed his concern about the use of the word ‘anti-national’. He said the term is very vague and could be misused against those criticising the government.

Justice Bagchi’s response would not only encourage the authorities but also the entire Hindutva brigade, who often raise such issues.

"Forget shreds of anti-national, supposing there is a video which shows that this part is not part of India- what do you do about that?" he said. No Indian would differ from the sentiments expressed by the Court. However, could the points raised by Bhushan be dismissed? The other side of the debate also needs consideration. Is it a lack of regulatory mechanism that allows such anti-national activities?

Is it not a failure on the part of the executive to curb these activities? Is our nationhood so fragile that posting a wrong map on a social media platform will shake people’s faith in the nation’s geography? The false narrative of nationhood has been built on the country's geography and the myth around Bharat Mata. The upholders of the narrative would not hesitate to declare Jawaharlal Nehru an anti-national who says, “what Bharat was and Hindustan, how this vast land stretched from Kashmir and the Himalayas in the north to Lanka in the south, how it included great provinces like the Punjab, and Bengal and Bombay and Madras.

How all over this great land they would find millions of peasants like themselves, with the same problems to face, much the same difficulties and burdens, and crushing poverty and misery. This vast country was Hindustan, Bharat Mata, for all of us who lived in it and were her children. Bharat Mata was not a lady, lovely and forlorn, with long tresses reaching to the ground, as sometimes shown in fanciful pictures.”

The Chief Justice's concern also raises issues. He says, “If you allow everything to be aired and telecast, then what will you do? Are you going on, expecting innocent people to defend? There are millions and millions of victims of these kinds of insults and humiliation, the kind of things that are taking place.”

The Chief Justice terms the bodies involved in the self-regulation of digital content as "self-styled” and asks whether, if the self-regulation mechanism were so effective, violations would keep recurring. Can this question not be asked of government bodies that often fail?

The Court should not express an unshakable faith in the government. It weakens democracy.

(The author is a senior journalist. He has experience of working with leading newspapers and electronic media including Deccan Herald, Sunday Guardian, Navbharat Times and Dainik Bhaskar. He writes on politics, society, environment and economy)