Imagined righteousness: on conduct on social media  

In urging the Union government to work on guidelines to regulate speech on social media, the Supreme Court of India is seeking to empower an executive that is already weaponising the legal limits on freedom of expression. In response to a petition by a non-profit assailing derogatory remarks by online figures against disabled persons, the Court issued instructions that further a problematic trend of the judiciary egging on the state to encroach on legal grey areas with statutory restrictions that undermine constitutionally guaranteed rights. To regard distasteful humour, however disturbing it might be, as a problem to be solved through the courts and by executive rulemaking, is to fall into a deceptive trap of imagined righteousness that progressive democracies should avoid. There are always unpleasant consequences in expanding powers to police speech: partisans wield their powers to ferociously monitor what is or is not appropriate, instrumentalising agencies of the state to suppress art and political speech they do not like; citizens find themselves constantly looking over their shoulder before expressing themselves. Under the overbearing atmosphere of censored expression, truths and ideas that must be reckoned with for a functioning democracy are stifled. People should not have to constantly look against asterisks that set terms and conditions for fundamental liberties. Film producers and directors have been pushed away from exploring subject matters that would help India progress socially, and journalists have been dealing with first information reports for carrying out their professional duties.

In recent years, the Union government has, formally and informally, expanded its control of online speech, with the problematic Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, and an amendment to those Rules that would allow social media companies to be proceeded against for content posted by users that has been flagged by the government. Monday’s instructions seem set to expand those ambitions, which are themselves under challenge with the Supreme Court. Hate speech and speech inciting violence against minorities are criminalised in India, giving disadvantaged groups powerful avenues of recourse when they are legitimately wronged. Handing an executive, which already has a record of mala fide weaponisation of media and speech regulations, more powers would be dangerous in the extreme. At a fundamental level, such judicial pronouncements, which cite “misuse of freedom of speech” as a ground, seem to misperceive the framework of their institutional role: that of a protector of rights under a clear constitutional framework, and not of an unchallenged lord in a feudal society.