\u201cThe oppressed, instead of striving for liberation, tend themselves to become oppressors.<\/em>\u201d[1]<\/a><\/p>\n
Significantly, India\u2019s independence ensured that all its citizens enjoy equally, the freedom of speech and expression. Freedom of speech and expression is universally considered as one of the significant attributes of a democratic State. No doubt, the same is necessary not only for dissemination of ideas and information, rather, to curb unrestricted exercise of power by State. The Constitution of India (the Constitution) guarantees to all its citizens, inter alia, freedom of speech and expression under Article 19(1)(a<\/em>)[2]<\/a> thereof. However, such freedom is not untrammelled or unrestricted. In fact, Article 19(2)[3]<\/a> of the Constitution confers power on State to impose reasonable restrictions in the exercise of this freedom, \u201cin the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence\u201d. Significantly, the Supreme Court[4]<\/a>, though, declaring that the provisions of Article 19(1)(a<\/em>) of the Constitution must be accorded a broad canvas, however, clarified that the \u201cfreedom of speech and expression as enshrined under Article 19(1)(a<\/em>) of the Constitution is not absolute in view of Article 19(2) of the Constitution\u201d. It is further settled law, the freedom conferred under Article 19(1)(a<\/em>) of the Constitution includes a right to express dissenting opinion. In fact, as per the Supreme Court[5]<\/a>, \u201cit is only the maker of an unpopular and dissenting opinion who would need a cover or insulation. A popular or accepted opinion, naturally would not require any protection\u201d.<\/p>\n
One of the facets of the rights conferred under Article 19(1)(a<\/em>) of the Constitution includes the freedom and liberty of press; electronic and print media. In Hindustan Times <\/em>v. High Court of Allahabad<\/em>[6]<\/a>, the Supreme Court, while acknowledging the indispensable role of press\/ media in a democracy, observed:<\/p>\n
Undoubtedly, this is the reason why media is considered as the fourth pillar of democracy. Pertinently, with the advancement of technology, electronic and print media are no longer the only modes of broadcasting different point of views. In fact, with increased access to various electronic devices and awareness about internet, \u201csocial media\u201d has emerged as one of the important tools for such purpose.<\/p>\n
Social media primarily includes interactive computer and internet-mediated technologies, meant for sharing and discussing information. Though these technology-based applications may not be meant exclusively for news and facts dissipation, however, have proved to be an effective tool for circulation of ideas, knowledge, personal and professional data, etc. At the same time, these applications and social media platforms have demonstrated themselves as powerful tools for spreading awareness on current and contentious issues. Accordingly, they have proved to be effective in formulating opinions and invoking mass condemnation against several acts of injustice and subjugation. In the context of these movements, the words \u201ccalling out\u201d or \u201ccallout\u201d have gained popularity on social media. These words simply mean publicly denouncing or criticising a person or behaviour. In other words, calling out involves[7]<\/a>; censuring someone about something they have said or done and challenging them to explain it.<\/p>\n
Dr Martin Luther King, Jr. once remarked, \u201cThe ultimate tragedy is not the oppression and cruelty by the bad people but the silence over that by the good people.\u201d Undoubtedly, when the situations demand, it becomes incumbent on the society to collectively speak up against injustice and suppression. Such collective voices against oppression may be in the form of a peaceful protest, candle light vigils, raising awareness though media\/social media and the most recent, calling someone out on public\/social media platforms. Pertinently, the right to a peaceful protest has been recognised as one of the fundamental rights by the Supreme Court. As per the Court[8]<\/a>, \u201cOrganised, non-violent protest marches were a key weapon in the struggle for Independence, and the right to peaceful protest is now recognised as a fundamental right in the Constitution.\u201d<\/p>\n
Similarly, in Mazdoor Kisan Shakti Sangathan <\/em>v. Union of India<\/em>[9]<\/a>, while reiterating that right to protest is one of the fundamental rights, the Supreme Court\u00b8 inter alia,<\/em> observed that the same, \u201cis crucial in a vibrant democracy like India but more so in the Indian context to aid in the assertion of the rights of the marginalised and poorly represented minorities\u201d. Therefore, seen in this context, the importance of addressing serious issues, which may be in the form of calling out\/callout, cannot be overstated. The underlying idea behind calling out\/callout can, therefore, reasonably be deduced to promote awareness and consequent cooperative actions on serious issues through a public platform. This process, simultaneously, involves appealing to the conscience of the wrongdoers and\/or to reprimand such individuals\/wrongdoers for their actions and to explain their conduct, publicly.<\/p>\n
In past, there have been several instances of calling out\/callout on social media platforms. Illustratively, the Me Too (or #MeToo) movement[10]<\/a> against sexual harassment and sexual abuse gained momentum across world, commencing October 2017. This movement began with the exposure of several sexual abuse allegations against Harvey Weinstein, American former film producer. This was followed by widespread use of phrase and hashtag in similar manner across the globe, by several individuals, to publicise instances of sexual offences committed by their perpetrators. Quite recently, with the atrocities and incidents of police brutalities against the coloured\/black citizens of America, #BlackLivesMatter[11]<\/a> movement has gained impetus. Undeniably, such massive movements, universally, have proved to be quite productive in addressing serious social evils and motivating the oppressed to come forward with their concerns. Further, it is quite comprehensible that these movements, which are executed primarily through social media platforms, act as stimulus to a victim to put forth his\/her story, online, which he\/she may often hesitate to do so, in person.<\/p>\n
Indian judiciary has time and again cautioned against the practice of media trial. In fact, the Supreme Court[12]<\/a> has specifically observed, \u201ctrial by press, electronic media or public agitation is the very antithesis of rule of law. It can well lead to miscarriage of justice\u201d. Simultaneously, courts have consistently condemned the practice of individuals, taking law into their own hand, by holding the same as violative of \u201crule of law\u201d. In this regard, the Punjab and Haryana High Court[13]<\/a>, observed:<\/p>\n
Therefore, it can be easily appreciated that mindless and hasty actions, including social media censures and resorting to physical violence against alleged perpetrators based on such callouts, are antagonistic to principles of democracy and rule of law on which our nation is built.<\/p>\n
In the context of forwarding news\/information on social media platforms, inter alia, <\/em>through WhatsApp, the High Court of Madras in S. Ve. Shekher <\/em>v. Inspector of Police<\/em>[14]<\/a> held, \u201c[f]orwarded message is equal to accepting the message and endorsing the message\u201d The Court further acknowledged that where messages about certain incidents\/acts are forwarded by celebrity and persons of social stature, \u201cthe common public will start believe it that this type of things are going on. This sends a wrong message to the society\u2026.\u201d Clearly, a degree of caution and responsibility is obligatory on individuals before accepting, endorsing and forwarding a view on social media platforms as a mindless exercise of power which social media grant, may lead to serious repercussion.<\/p>\n
Pertinently, the\u00a0 High Court of Delhi in Ashish Bhalla <\/em>v. Suresh Chawdhary<\/em>[15]<\/a>, <\/em>recently, held that an administrator of an online platform cannot be made liable for defamation even if any, by the statements made by a\u00a0 member of the group. Significantly, though, the judgment was pronounced in the case of publication of defamatory material online, observations made therein may reasonably be extended in cases where a group administrator had no role in dissipating fake news and hate messages online.<\/p>\n
Significantly, there are several provisions under law, meant for curbing the practice of spreading hate news, defamatory and scandalous material, etc. Under the Penal Code, 1860 (IPC), the offence of defamation[16]<\/a> is punishable[17]<\/a> with a term which may extend to two years, or with fine, or with both. Punishment for printing or engraving matter known to be defamatory and sale of printed or engraved substance containing defamatory matter is provided under Sections 501[18]<\/a> and 502[19]<\/a> IPC, respectively. At the same time, sale\/advertisement\/publication, etc. of obscene books, materials, pornographic materials, etc. is punishable in terms of the provisions of Sections 292-294 IPC[20]<\/a>. The Information Technology Act, 2000 (the IT Act) provides penalty for offence(s) of dishonestly receiving stolen computer resource or communication device [under Section 66-B[21]<\/a>); identity theft (under Section 66-C[22]<\/a>); cheating by personation by using computer resource (under Section 66-D[23]<\/a>); violation of privacy (under Section 66-E[24]<\/a>); publication or transmission of material containing sexually explicit act, etc., in electronic form (under Section 67-A[25]<\/a>); publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form (under Section 67-B[26]<\/a>), etc.] Unfortunately, despite such wide assortment of statutory and penal provisions, instances of wrongful labelling and denunciation of individuals through social media platforms is rapidly increasing.<\/p>\n
*<\/a> Advocate, Delhi High Court.<\/span><\/p>\n
[2]<\/a> \u201c19. (<\/em>1) All citizens shall have the right (a<\/em>) to freedom of speech and expression<\/a>;\u2026.\u201d.<\/p>\n
[3]<\/a> Article 19(2)<\/a><\/p>\n
[4]<\/a> Devidas Ramachandra Tuljapurkar <\/em>v. State of Maharashtra<\/em>, (2015) 6 SCC 1<\/a>, 84, para 141.<\/p>\n
[5]<\/a> Markandey Katju <\/em>v. Lok Sabha<\/em>, (2017) 2 SCC 384<\/a>, 408, para 34.\u00a0 .<\/p>\n
[6]<\/a> (2011) 13 SCC 155<\/a>, 156.<\/p>\n
[7]<\/a> Macmillan Dictionary<\/em> <https:\/\/www.macmillandictionary.com\/us\/dictionary\/american\/call-out<\/a>>.<\/p>\n
[8]<\/a> Anita Thakur <\/em>v. State of J&K<\/em>, (2016) 15 SCC 525<\/a>, 533, para 12.<\/p>\n
[9]<\/a> (2018) 17 SCC 324<\/a>, 366, para 54.<\/p>\n
[10]<\/a> \u00a0Me Too movement, Wikipedia <https:\/\/en.wikipedia.org\/wiki\/Me_Too_movement<\/a>>.<\/p>\n
[11]<\/a> Black Lives Matter, Wikipedia <https:\/\/en.wikipedia.org\/wiki\/Black_Lives_Matter<\/a>>.<\/p>\n
[12]<\/a> State of Maharashtra <\/em>v. Rajendra Jawanmal Gandhi<\/em>, (1997) 8 SCC 386<\/a>, 403, para 37.<\/p>\n
[13]<\/a> Sukhwinder Singh <\/em>v. State of Punjab<\/em>, 2008 SCC OnLine P&H 384.<\/a><\/p>\n
[14]<\/a> 2018 SCC OnLine Mad 13583<\/a>.<\/p>\n
[15]<\/a> 2016 SCC OnLine Del 6329<\/a>.<\/p>\n
[16]<\/a> Section 499 of the Penal Code, 1860<\/a>.<\/p>\n
[17]<\/a> Section 500 of the Penal Code, 1860<\/a>.<\/p>\n
[18]<\/a>\u00a0 Section 501 IPC<\/a>.<\/p>\n
[19]<\/a> Section 502 IPC<\/a>.<\/p>\n
[20]<\/a> Sections 292-294 IPC<\/a>.<\/p>\n
[21]<\/a> Section 66-B, IT Act<\/a>.<\/p>\n
[22]<\/a> Section 66-C, IT Act<\/a>.<\/p>\n
[23]<\/a> Section 66-D, IT Act<\/a>.<\/p>\n
[24]<\/a> Section 66-E, IT Act<\/a>.<\/p>\n
[25]<\/a> Section 67-A, IT Act<\/a>.<\/p>\n
[26]<\/a> Section 67-B, IT Act<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"