Why striking down Section 66A does not guarantee absolute protection?

Power corrupts and absolute power corrupts absolutely is an old adage and perhaps has a resonance across time and space. The principles of democracy, liberty and freedom recognise this and have devised institutional safeguards to prevent abuse of power by the political class. These safeguards include the media and the institution of the judiciary and judicial power. In an eloquent display of judicial power to protect individuals and individual rights like freedom of speech, the Supreme Court of India has struck down Section 66A of the Information Technology Act. Section 66A was grossly open to abuse; the Supreme Court recognised this and struck it down. This is indeed a landmark judgement. However, despite the force of law behind the new judgement, it does not entirely safeguard individual rights such as freedom of speech. The state and the political class can find ways and means to obscure power and harass an individual who exercises free speech.[caption id=“attachment_1185063” align=“alignleft” width=“380”] Is striking down Section 66A enough to protect freedom of speech? Reuters[/caption] This is more salient and poignant in instances where the state apparatus and the agents of the state are dependent on the political class. Or, in other words, where there is a symbiotic relationship between the agents of the state and the political class. In theory and as an ideal type, the agents of the state – bureaucrats, police, etc. – are somewhat free agents beholden to the state and the interests of the state. But in practice, this is not the case. The agents of the state can depend for a whole host of reasons on the political class. Moreover, there are extra state patronage networks where power flows horizontally and vertically in ways where the state becomes a bit of a hybrid. Dependence of the agents of the state on the political class can create situations where they can be employed against the individual or the citizenry. An individual can be harassed merely for saying something that a member of the political class deems offensive or threatening. The state machinery can be activated without taking formal recourse to it. And an individual harassed, threatened or life made difficult for him or her just for, say, exercising free speech. The question is how? There are instances galore that an individual can be harassed and victimised without taking recourse to actionable complaints like FIR’s against him or her. We all depend on the state in form or the other. We live in a society in which market relations are monetised; we then need money. These vulnerabilities can be exploited and an individual put in the cross hairs of vindictiveness or vendetta by those in power. An individual can be kicked out of employment for the most frivolous of reasons or life can be made difficult for him or her at workplace. Similarly, an individual can be starved of capital and made to suffer. There are subtle ways too. An individual’s reputation can be sullied and besmirched and his or her social status threatened. An individual can also be driven mad by creating a hostile environment around him or her and focus on pressure points where he or she is most vulnerable till he or she cracks. All this can be done by obscuring power and not taking recourse to formal channels of the state. How can the victim prove this and fight against this? One infamous example of the exercise of arbitrary state power against an individual is the Dreyfus Affair. Captain Dreyfus was accused of espionage by the French State and his accusation and then exoneration was a watershed event in the history of the French Republic. What motivated animus against Dreyfus was virulent French nationalism and anti Semitism. An example closer home came to public notice highlighting an individual’s helplessness against abuse of state power is the victimization of the 14-year-old girl Ruchika Girhotra in 1990. This was a case of molestation of the girl by the then IGP SPS Rathore. When the girl’s family complained, they were systematically threatened and harassed by the police. The girl then committed suicide. Even though this was not a case of free speech but an individual was harassed and harmed so much that the victim paid for it with her life. Access to justice can be expensive and onerous. The media may not be interested. And society may be hostile. There is then no real recourse to redressal and justice. Are we then back to square one? Not entirely is the answer. The best antidote to abuse of power against an individual may lie in individual autonomy and empowerment and its recognition by the individual; and perhaps in technology. An individual must be aware of his and her rights and be prepared to stand up for these. In conjunction with technology and the nature of the media these days, an individual can to an extent protect himself or herself against the abuse of state power. An example may suffice here. An instance of harassment can be recorded and if the conventional media is not interested, social media can be employed to throw light on an instance of harassment or threat. The network effect of the social media can to an extent prevent abuse and protect an individual by kicking in countervailing forces – social or the media and even the legislature. In the final analysis, it is all well and good that the Supreme Court has thrown its prestige, weight and authority to prevent abuse and protect an individual. But in the absence of an empowered and enlightened citizenry, the court injunction loses much of its sting.