TECHNOLOGY AS A CHALLENGER AND AN ALLY TO CONSTITUTIONALISM

Author(s): APAR GUPTA

Source: India International Centre Quarterly, Vol. 45, No. 3/4, SOCIAL MEDIA IN A
NETWORKED WORLD (WINTER 2018-SPRING 2019), pp. 53-65
Published by: India International Centre
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 TECHNOLOGY AS
A CHALLENGER
AND AN ALLY TO
CONSTITUTIONALISM*
APAR GUPTA

even for the most privileged. Connection handshakes were forged

It even over noiwassy formodemsnoisyin notselecttheboroughs
so modems most iltoanngInagodianprivileged. in that select Internet Connection boroughs access handshakes of was metropolitan stil being were rationed, Indian forged
of metropol
cities. Bandwidth and access were limited. This economy crept
into chat rooms where the use of acronyms became denominators
of modernity. A favourite of programmers was, 'AFK' Expanded to
'Away from Keyboard', it conveyed that the user behind the screen
was physically absent from the computer terminal. To some, this
was a form of etiquette, denoting a delay in response to other chat
participants. However, to those who had accepted the centrality
of digitisation, it meant that they were merely taking a break from
the computer. The keyboard was the principal determinant of their
environment. Some even argued that there was no marked division
between the virtual world and the real world. It all collapsed into
one seamless web - it did, didn't it?
Today, there is no need to type in 'AFK'; we are connected,
everywhere, at all points. What is even more remarkable is the
increasing physicality of the intangible bits of data which determine
basic human functions - the way people commute, talk and form
personal relationships, transact commerce, consume and create
media. Not restricted to the privileged, algorithms - curiously
no longer referred to as computer programmes - determine vast
swathes of life for the mil ions who negotiate their lives around the
indices of deprivation. For instance, a software matches the level
of accuracy of a saved fingerprint in its database with one scanned
on a point-of-service device to determine the identity of a person.
This system is today widely used in the dispersal of state subsidies.

Winter 2018-Spring 2019, Volume 45, Numbers 3 < S' 4

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lie QUARTERLY

Already there are policy documents, an

in India of what are termed as 'smart cit
software and sophisticated surveillance
benefits of better civic services. Their a
availability create an ecology of perpetua
It is not without reason that many sma
offer any option for battery removal. Af
be connected all the time. Many things
disturbing, but we continue to embrace the
they undeniably improve the quality of our
10 Indians are connected to the Internet, an
to grow. Such technological change in India
stories. The one this article would like to te
In the seeming backlash against techn
social impact is in a more tenuous area of
seemingly obvious friction between tec
in the start-up incubators of Koramanga
the courtrooms on Tilak Marg in central
mutual discomfort - if not hubris, fear
technologists prioritise source code o
fraternity fears a change to the status quo
Engineers are pessimistic about the ineffici
and seek an opportunity to 'leapfrog',
Lawyers and judges, to their credit, often ex
from legacy legal frameworks of telegraph
somewhat simplistic generalisation, but
is a frequent contest between this binar
friction may lead to victories of constituti
application, where the stasis of legal preced
remedied, by the rapid changes of a digital
Using two recent examples in this art
opportunities exist to replenish, reinfor
foundations of fundamental rights. Whi
faulted for optimism, the examples used
national debates, which have not only c
but have also led to state responses in t
fundamental right to speech and expres
these is the constitutional challenge to S
Supreme Court safeguards freedom of

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GUPTA : TECHNOLOGY AS A CHALLENGER AND AN ALLY TO CONSTITUTIONALISM

with renewed vigour. Thereafter, the Telecom Regula

of India (TRAI) adopted the principles of Networ
an order that is premised on the public ownershi
to ensure media diversity It will be argued that su
responses collectively pose that - beyond individual re
and losers - the substantive content of law is atte
ideals of justice, liberty, equality and fraternity a
with technology.

CAN THERE BE A DIFFERENT STANDARD FOR FREE SPE

FOR THE INTERNET?
Great constitutional cases are birthed by greater c
there was something seemingly ordinary when,
Jagdish Patii, head over heels in love, availed of
'Ribbons and Balloons', a local pastry shop located
Maharashtra. It offered a novel service which would h
the affections of his prospective partner by prep
cake with the lady's image on it. The pastry shop serv
by printing her Facebook profile picture - literall
icing. The birthday cake was received not by the g
turned 20, but by her father. He filed a police compl
registered under Section 66 A of the Information
Act, 2000, in December 2015 (Bhardwaj, 2015) - ye
never a tale of more woe than of this Juliet and her J
this story is only one of many.
About the same time, two young girls i
Maharashtra, were arrested under the same law f
a 'bandh' in Maharashtra on their Facebook profi
Barely in their 20s, one Muslim and the other Hin
crime was political criticism - they had merel
statewide curfew had been imposed because of fe
rather than any respect owed to Bal Thackeray on
details were mentioned not only in the complaint
Sena activist, but also in an FIR at the local police
captured media attention, and soon several reports
abuse of Section 66A. These included the arrest o
retired professor who used a meme from a Satya
mock a chief minister; a young girl who complain
extortion; and a young businessman who had critic

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lie QUARTERLY

cabinet minister for corruption. All of th

of India, shared different social group
different political worldviews. What unit
Internet for airing their opinions, and th
under Section 66 A of the IT Act. Man
be next.
Several legal experts and commenta
Section 66A was a bad law. This was
of the text of the provision, and also b
where its use was noticed in a wide ran
prosecutions contained distinct facts w
unitary or coherent articulation of a sp
is likely to be the death of Section 66
that eventuality, it is important to con
this provision was made, and the subs
existence in the Supreme Court. The IT
law which governs online activities (Ca
intended for regulating online commerce
to provide legal recognition to online c
went by, people were using the Intern
connections. This was especially true i
of mobile telecom networks compensat
of landline telecom services. For the f
Indians were able to both receive know
thoughts. This two-way channel op
the media to a large extent with the
spread. It is not without reason that F
Rapporteur on Freedom of Expression,
the most powerful instruments of the
transparency in the conduct of the powe
and for facilitating active citizen particip
societies' (2011).
With increased connectivity, there
online communication. Although digitally
within the legal purview of antiquated co
the offences of obscenity, criminal defam
Indian Penal Code, 1860 - arguments w
category of offences was required. Thi
moral panic that Internet access was c

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GUPTA : TECHNOLOGY AS A CHALLENGER AND AN ALLY TO CONSTITUTIONALISM

undermining 'Indian values', and partly as a result of

of online discourse where, for the first time, indiv
freely to large audiences. To some, this was libera
frightening. This was partly sought to be address
committee report that was subsequently referred
Committee of Parliament where, for the first time,
an appearance.1 Its intended purpose was to preven
unsolicited e-mails which caused annoyance to us
e-mails' provided miracle remedies, preying on hu
of body and mind more often posed towards markers
such as alopecia or impotence. Section 66A sought t
writers of such e-mails.
As Section 66A was slowly navigating the
legislative corridors, a horrific terrorist attac
November 2008 accelerated the pace of this pro
to have unfortunate consequences. With press rep
of digital technologies by the terrorists, the IT A
without debate in a special session of Parliament
Chowdhury, 2015), and fashioned as National
This prevented legislative scrutiny not only on S
also on several other problematic provisions on s
interception, which were added on later. The lan
66A that finally became law was changed from t
proposed. This becomes important when one comp
proposal, where it was limited, to that eventually
Hence, no one quite knew the offence Section 66
prevent, or how it catered to a social need. This va
breadth became important in the Supreme Court's
to strike down the provision as unconstitutional.
Shortly after the arrest of the two girls in P
the continuing outrage as details unfolded on
news broadcasts, Shreya Singhal, a law student
interest petition (PIL) challenging the constitution
Her petition argued that Section 66A was vague a
specificity necessary whenever a speaker's funda
freedom of speech and expression was abridged by
the first day, when the case came up for hearing bef
Court, to the amusement of several young lawyers in
Senior Counsel appearing on her behalf explained

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lie QUARTERLY

gesture - popping up his thumb - that one

in Pahlgarh 'liked' the status message of
Chief Justice of India, the late Justice Alta
understood how Facebook worked, he im
the plea, stating, 'We were wondering w
the Court.' The Court immediately sensed
the challenge to Section 66A.
As the case wound on, and final argu
next two-and-a-half years, the final argume
a judgement eventually fell to Justice Rohi
Justice Jasti Chelameswar. For many law
this case, there was already a sense of victo
on repeated occasions, had passed orders
nature of the provision. This included g
against its use, and arrest. But stranger t
past, and no one ventured a wager till th
out in court.

The lawyers, for once, should have played a game of roulette

for, on 24 March 2015, the Supreme Court of India struck down
Section 66A as unconstitutional by its decision in Shreya Singhal v.
Union of India.2 The Court, to base its analysis, divided speech into
three distinct categories - discussion, advocacy and incitement -
holding that 'even advocacy of a particular cause howsoever
unpopular is at the heart of [the fundamental right to freedom of
speech and expression]'. Using the evocation of precedent from
the case of S. Rangarajan v. P Jagjivan Ram,3 it reasoned that the
immediacy of restriction on free expression to its intended purpose
was a necessary requirement. The language of a provision ought to be
specific and closely tied in with the intended objective, like a 'spark
in a powder keg'. Any more flexibility in a statute would render it
unconstitutional. As the Court stated, Section 66A was incredibly
malleable and could take any shape to fit a legal prosecution. Hence,
by its plain reading, it failed thresholds for legislation to restrict
freedom of speech and met a constitutional death.
A core facet of the decision was its reasoning on the
nature of the Internet. This became important, as was argued by
Additional Solicitor General Tushar Mehta, that a 'relaxed standard
of reasonableness of restriction should apply, regard being had
to the fact that the medium of speech being the Internet differs

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GUPTA : TECHNOLOGY AS A CHALLENGER AND AN ALLY TO CONSTITUTIONALISM

from other mediums on several grounds'. He w

several criteria, which, according to the gover
require the retention of a broad, catch-all law,
66A. This included better connectivity, greate
reduction of friction in transmission. According to t
phrases in Section 66A such as, 'grossly harmf
'menacing', were a necessary subjectivity, given a
and unrestricted Internet. Simply put, the ver
revolutionary technology would also justify a gr
placed on it through law. The fallacy in this argumen
with force by the Supreme Court, which stated
find anything in the features outlined by the le
Solicitor General to relax the Court's scrutiny of the
content of free speech over the Internet'. The Cou
from the case of Cricket Association of Bengal :4 '
of circulation of information or its greater impac
the content of the right nor can it justify its den
of the electronic media cannot become its enemies.' Section 66A
was felled by the firm restatement of principle that 'the validity
of [Section 66A] will have to be tested on the touchstone of the
[constitutional] tests already indicated above'.
While this might seem like a fairly natural outcome, it
was one of the finest hours of the Indian Supreme Court on the
protection of free expression. Striking down a central statute is a
rare event. For instance, constitutional challenges against offences,
such as sedition and criminal defamation, have repeatedly failed.
Within the reasoning of the Shreya Singhal judgement are clear
articulations of constitutional doctrines on the fundamental right
to freedom of speech and reasonable restrictions; the concept of
over breadth and vagueness; and the acceptance of the harm of
a 'chilling effect' by a vague law. With the passage of time, this
judgement is often relied on not only for its ruling on Section 66A,
but also for its comments on protecting online platforms which
serve as conduits of information. One could expect no less from
Justice Nariman who, beyond his tremendous legal acumen and
authorship, also has a YouTube channel with a one-and-a-half
hour lecture on Beethoven's Große Fuge Op. 133. Gradually,
we all became speakers on the Internet - even judges of the
Supreme Court.

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WHO GETS TO BE A GATEKEEPER ON THE IN

As celebrations of the Shreya Singhal jud
on 27 March 2015, TRAI released a co
'Consultation on Regulatory Framework
Services/ Internet Services and Net Neut
and tucked away on a government webs
by policy mavens and telecom companie
reason. As John Oliver inimitably put it
possibility, 'the only two words guaranteein
language besides "featuring Sting'".5 His
of Net Neutrality on a similar consultati
the Federal Communications Commission in the United States.
Both in India and abroad there lurked proposals by large telecom
companies to undermine the egalitarian potential of the Internet,
for equal and complete Internet access for every citizen. It would
permit Internet service providers - the backbone of networks - to
become the gatekeepers. They could slow down or speed up access
to a particular website, block it, or even charge or discount (beyond
the monthly payment made by users) for access. In effect, they could
shape not only Internet traffic - the future of online businesses - but
also the fundamental right of individuals to receive information
and, in turn, express it. This was the power over users that telecom
companies were seeking to appropriate for profit.
This issue would be settled by regulation, one way or the
other. It is at this point that TRAI gained public prominence. As a
regulator for the liberalised telecom sector, it enjoyed wide powers
to safeguard public interest and ensure orderly growth. Telecom
companies were licensees of the central government and permitted
to offer voice, text and data services through a bundle of agreements
made under the Telegraph Act. Beyond these agreements, for policy
formation and the development of nuanced regulatory principles,
TRAI became the go-to public office. It habitually released
consultation papers for comments that were often dominated by
telecom companies and industry bodies. There was transparency in
TRAI's functioning, but little public participation.
This changed when, on 11 April 2015, the comedy group,
'All India Bakchoď (AIB), released a video explaining Net Neutrality.
It called for viewers to send TRAI an e-mail.6 This e-mail contained
a simplified response of a larger expert paper, which drew its

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GUPTA : TECHNOLOGY AS A CHALLENGER AND AN ALLY TO CONSTITUTIONALISM

theoretical grounding from the decision of the S

Cricket Association of Bengal7 Here, it becomes impo
explanation since it marks the transition of constitu
which are transposed from print to television broadc
the Internet. This judgement arose from the controv
a cricketing association that sought permission from
to telecast a six-nation cricket tournament by uplink
broadcaster named Trans- World International. Within this somewhat
straightforward claim rested layers of constitutional determination to
negotiate the power of a private body (which controlled media), the
government (which asserted its ownership over the airwaves), and
the fundamental rights available to every individual.
While the Shreya Singhal judgement drew from the Cńcket
Association of Bengal case to restate the constitutional protections
for the Internet, irrespective of its medium, in the Net Neutrality
debate it came to be used for the doctrine of airwaves being a shared
public resource. While the Court recognised that the state had a
controlling interest in regulating airwaves given 'scarcity, costs, and
competition', these had to be in the service of larger public interest.
These principles were drawn from the fundamental-right battles
of newspapers, which had opposed government policies setting
quotas on newsprint, advertising and circulation, notably in the
cases of Sakal Newspapers ,8 Indian Express Newspapers,9 and Bennett
& Coleman.10 These case citations were omitted from public answers,
but formed the underlying reasoning of a 30-page document which
was first prepared by the SaveThelnternet.in collective. Simplified
and made available on a website, any person could now petition
TRAI with two clicks. Within the first 24 hours of the AIB video
broadcast, more than 100,000 e-mails had been sent, and within a
week, more than a million. This was the largest online movement for
digital rights in India.
But victory did not come easily, or immediately. There were
further rounds of consultations as TRAI aimed for nuance and
calibration, sensing massive public interest. The first issue it took up
for individual determination was 'zero-rated services'. These were
a bouquet of websites and applications to which access would be
free, not incurring any data charges, irrespective of a user's telecom
connection plan. But this was dependent on the website entering
into a contract with the Internet service provider. SaveThelnternet.in

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lie QUARTERLY

collective had argued that this amounted

of a user, and allowed the telecom opera
lnternet.org programme (run throug
subsequently called Free Basics), picking
went beyond their core function of acces
consultation paper on 9 December 2015, a
video on 24 December 2015. Again, com
flooded in, and this time more experts p
intervention was led by non-profit grou
joint letter they stressed that 'the open I
good'. Using constitutional doctrine, the
'creating a diverse and universal Internet
accessible... gatekeeping the Internet or a se
strictly and categorically prohibited'.11
Shortly thereafter, on 8 February 20
zero-rated services by issuing the Prohi
Tariffs for Data Services Regulation. In an
memorandum it cited the cases of Cricket A
Indian Express Newspapers, stating that 'th
that the use of the Internet should be in such a manner that it
advances the free speech rights of the citizens, by ensuring plurality
and diversity of views, opinions, arid ideas'.12 Within minutes of
the regulations being made public, SaveThelnternet.in posted on
Twitter: 'We won #SavedTheInternet.'

TECHNOLOGY POSES A CONTINUING CONSTITUTIONAL PROMISE

In retrospect, many fault the processes and outcomes in the Section
66A case and the Net Neutrality movement. This is with good reason
as both instances have been driven by metropolitan concerns and
lacked diversity. Even the outcomes they have achieved are disputed.
While the Shreya Singhal judgement ages well on its core
holding, it also contains problematic observations on the process
of website blocking. Today, an ever-increasing number continue to
be blocked without any transparency or natural justice. Further, as
media reports and research have shown, Section 66A continues to
be used, despite its unconstitutionality, in prosecutions across India
(Sekhri and Gupta, 2018). Even in cases before High Courts, the
application of this dead law does not arouse the judges' curiosity.
Meanwhile, researchers have inferred that other content offences,

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GUPTA : TECHNOLOGY AS A CHALLENGER AND AN ALLY TO CONSTITUTIONALISM

principally obscenity, have stepped in to fill th

oppressive legal prosecution. New problems of Inte
information floods, targeted abuse, increasing se
Internet platforms, and misinformation campaigns co
our understanding of freedom of speech online. Th
ask today, and with legitimacy, is: 'What was achieved
Singhal Judgement?'
The Net Neutrality movement is also not
criticisms. For instance, a rigorous analysis pervades
of Smarika Kumar (2017), who states that the reg
lacked nuance and ignored the structural problems
Revati Prasad (2018) makes a much more troublin
the movement, linking its success with notions o
even Hindu tva ideology. Meanwhile, through subs
consultations, recommendations and license amend
Neutrality is firmly entrenched as a legal rule; ho
remain about its enforcement. There are frequent rep
service providers blocking access, and users quite o
their bandwidth to specific web sites and services is t
Such critique is necessary, and indicates not only
of humility in victory, but also continuing enga
same time, we must celebrate both Section 66A an
for two principal reasons. The first is that both
public institutions in India positively engaging wit
concerns and contemporary debates on the funda
freedom of speech and expression. The Supreme C
urgency and rose to protect those who were charged
course of hearings. It recognised that the Internet
being used as a medium for discussion and advoca
TRAI (a staid telecom regulator) was overwhelmed
exercise, but continued to welcome public particip
positively throughout the breadth of proceed
gold standards of transparency. This, to a large ex
possible by the media ecology of the Internet which
engagement, and for individuals to voice their dem
is the ever greening of constitutional doctrine on fre
its application to the Internet. Here, both the Sup
TRAI have adopted principles from past preceden
them in a positive, rights-respecting framewo

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extension may not be a natural outcome

result in defeats and failure, it is importan
To conclude: victories are not without p
even setbacks. Today, the challenges
visible in information privacy, labour pr
minorities and women. Such issues are ill
in which public institutions have an opp
doctrine with a view towards the fut
demand vibrant engagements to fulfil c
Indians in their enjoyment of fundamental

ACKNOWLEDGEMENTS

*Apar Gupta is a lawyer who serves as the Executive Director of the Internet
Freedom Foundation (IFF). He acted in the Section 66A challenge for Aseem Trivedi
and the People's Union for Civil Liberties (PUCL), and was a core member of the
SaveThelnternet.in movement. Being an integral part of both instances, which form
the narrative of this article, portions of the writing draw from lived experience. While
most materials are public, those which are not are on file are available on request.

NOTES

1. Ministry of Electronics and IT, Press Release on the Report of the Expert
Committee on the IT Act, 2000, explains the scope and extent of the Information
Technology Act. August 2005. Available at https://meity.gov.in/writereaddata/files/
press-release.doc.
2. (2015) 5 SCC 1.
3. (1989) SCC (2) 574.
4. (1995) 2 SCC 161.
5. See John Oliver, 'Last Week Tonight with John Oliver: Net Neutrality',
HBO, 1 June 2014. Available at https ://www.youtube.com/watch?v=fpb
OEoRrHyU &rt= 1 2 4s .

6. See All India Bakchod (AIB), 'Save The Internet', 1 1 April 2015. Available at
https ://www.youtube . com/watch? v=mfY 1 N KrzqiO .
7. (1995) 2 SCC 161.
8. [1962 SCR (3) 842].
9. [1962 SCR (3) 842].
10. [1973 SCR (2) 757].
11. See Access Now, et al., Joint Letter and Counter-Comments on the TRAl's
Consultation Paper on Differential Pricing for Data Services, 15 January 2016.
Available at https://main.trai.gov.in/sites/default/tiles/201601 180327042420938A
ccess_N ow_n_Ors . pdf.

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GUPTA : TECHNOLOGY AS A CHALLENGER AND AN ALLY TO CONSTITUTIONALISM

12. See Telecom Regulatory Authority of India's Explanatory Mem

Prohibition of Discriminatory Tariffs for Data Services Regulatio
2016. Available at Prohibition of Discriminatory Tariffs for Dat
Regulation.

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