MediaNama’s Take:
The Allahabad High Court’s (HC) recent ruling about “unsaid words” inciting public disorder is a serious blow to online free speech and freedom of expression. As the scope of the undefined “unsaid words” is very broad, expressions of irony, satire, euphemism or even political dog-whistling are at risk of falling under this infinite, undefined criterion.
This ruling also undermines the reasoning behind the 2015 landmark Shreya Singhal case, in which the Supreme Court (SC) struck down Section 66A of the Information Technology Act (IT Act), which criminalised offensive speech. The court ruled that terms in that section, such as ‘grossly offensive’, ‘menacing’, ‘annoy’, ‘inconvenience’, and ‘insult’ are “open-ended and undefined”.
Moreover, the fact that the accused sent the alleged messages via private WhatsApp chat, as mentioned in the FIR reviewed by MediaNama, raises growing concerns over online free speech, especially when considered alongside the recent observations from Indian courts following the Ranveer Allahabadia-Samay Raina controversy, which suggested the need for specific laws to regulate “offensive” online speech.
While the online free speech and expression is already a murky space in India, over-reaching governmental measures to curb online content without any transparent reasons and explanation led to the blocking of over 5,000 URLs in just 10 months of 2022 under Section 69A of IT Act. Similarly, over 22,447 websites, URLs, applications, and social media posts were taken down under this section between January 2015 and September 2022.
For context, Section 69A empowers the Indian Government to block content online from public access if it poses a risk to the sovereignty, integrity, and defence of India. It can also order a blocking in cases of state security, relations with other countries, public order, and to prevent crimes as well.
In addition to enforcing opaque online censorship through the Sahyog portal—which authorities used to remove 8,000 X accounts after the Pahalgam terrorist attack and issue more than 130 content takedown notices to online platforms—the government recently amended the IT Rules, 2021, to grant authorised officers and courts the power to order intermediaries to remove content within 36 hours of receiving such an order.
As India currenlty witnesses vague legal and administrative actions against dissenters and non-dissenters– like Prof. Ali Khan Mahummad and Dr. Madri Kakoti (Dr. Medusa) – and satirists broadly charged with public mischief, promoting enmity and arbitrary content takedown orders, the Allahabad HC’s ruling that “unsaid words” can potentially “promote feelings of enmity, hatred, and ill-will between religious communities” sets a dangerous precedent for online free speech, even in private encrypted chats.
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