The arrest of YouTuber Pranesh Gautam had raised a furore against the state machinery and the laws that allow the restriction of liberty by the state. This is not the first time that speech-restrictive laws were used to muzzle critical voices, and not the first time a powerful private party instituted a case against a young creative voice. Though ironic enough, a film producer, who disseminates speech and enjoys negative liberty granted by free speech laws, has attempted to curb speech. This is just one of the reminders of how vague laws are not only capable of being vertically enforced by the government against the citizens, but also by the citizens against fellow citizens in a horizontal manner. This brings several concerns and sinister possibilities of misuse of the existent speech-restrictive laws to the fore.

This trend of powerful parties launching an attack against unfavourable voices is not new. Such (mis)use of the law is popularly known as Strategic Lawsuit Against Public Participation. Strategic Lawsuit Against Public Participation suits are not instituted with the intention of winning a legal battle. Instead, they are used as strategic tools by powerful private parties to intimidate and silence critics. But for the defendant in the lawsuit or an accused in a criminal case, the process itself is a punishment. The person has to undergo investigation and submit to the court for trial, incurring huge legal expenses for merely exercising her fundamental rights as a citizen. In India, the Anil Ambani-led Reliance Group sued the National Herald newspaper seeking damages in the amount of IRs50 billion for allegedly defaming the group by reporting on the controversial Rafale deal. And as these suits were not filed to win a legal battle, naturally these were withdrawn after the defendant got the air of intimidation and fear.

Vague terminologies

The case against Pranesh Gautam was brought under Section 47 of the Electronic Transaction Act 2006. The provisions of the act are as wide as possible since it prohibits publication of any material that propagates ‘hate or jealousy’ against ‘anyone’; and that which is against ‘public morality’ and ‘decent behaviour’. The law does not take into account that the level of tolerance is different among different users of the internet according to their peculiar understanding and background. The standard of public morality tries to have a one-size-fits-all approach thereby inhibiting the right to express as well as the right to information of citizens.

In the present case, another substantive law that is important is Section 306 of the Criminal Code 2017. The law in the criminal code is clearer in its scope. The exception to Section 306 mentions that the description of the merits and demerits of a ‘person’. Here, the review was about the content and not the person. Further, reviews are a common mode of literary criticism that is in practice the world over. Although the Electronic Transaction Act’s provision is replete with vague terminologies, one of the qualifications it states is that the content should also be incriminating under other laws of the land. Therefore, there is no case under either of the acts.

However, the initiation of prosecution under the Electronic Transaction Act, in this case, is very strategic. If the complainant had pursued a case against Gautam under the Criminal Code 2017, the police could not have directly nabbed him for the crime of defamation as it is a non-cognizable offence and a court order would have been necessary. However, under the Electronic Transaction Act, the police are empowered to arrest the accused without a warrant. This way, vague laws coupled with the mindless application of these laws by the police provide a germane ground for torture and harassment of otherwise innocent citizens.

This case is a reminder of how vague laws provide a conducive environment for silencing the critique through Strategic Lawsuit Against Public Participation suits. Presently, the laws are being made in complete disregard of international practices and conventions. The United Nations Human Rights Council has emphasised time and again that restrictions on speech should be sufficiently precise and clear so that it guides law-abiding citizens as to when their actions can be deemed illegal. The widely couched terms provide leverage for the state as well as any powerful party to initiate prosecution and discipline the polemicist. The proposed laws replete with vague terminologies—the Information Technology Act, Media Council Act and the amendments to the Criminal Code—will only allow the state and the powerful to wield more power.

Watchdogs to lapdogs

Clampdowns on journalists and media houses have become commonplace lately. This way, the voice of critics and the media will be suppressed to convert them from being a watchdog to a lapdog. The higher courts of the country have a huge responsibility on their shoulders as the guardians of the constitution. The attack on the fundamental rights of citizens should undergo rigorous scrutiny of the court. With regard to the misapplication of laws, the court should issue an elaborate guideline to the police in matters of the scope and application of the First Information Report and arrest. And when the laws suffer vagueness and overbreadth, they should be struck down.

As the goal of Strategic Lawsuit Against Public Participation suits is not a legal victory, the accused might be absolved of liability at a later stage because of the weak basis of the case. However, the unnecessary burden he or she has to bear as a victim of the legal process itself is enough punishment. It is tragic that the legislature and the state become aides of the powerful to brazenly harass citizens for exercising their rights. It should be understood that the freedom of speech does not just protect favourable expressions, but also those that offend, shock or disturb. And it is this conception of the right that should guide legislation drafting by Parliament, execution of laws by the police, and the adjudication of cases by the courts.

Subedi is a student at NALSAR University of Law, Hyderabad.