Focus on development: Don't divert state capacity to curb free speech

Karnataka government has produced a draft Bill that allows for jail terms of up to seven years for the production of fake news and other problematic content

As internet penetration in India grows and the use of artificial intelligence and deepfakes spreads, the problems to social order and democratic integrity posed by fake news have only grown. Tackling them, however, requires a careful balance. Regulating a quickly developing technical field using a somewhat technologically backward state machinery will certainly create problems. It is necessary, therefore, that authorities in India are cautious about the regulatory steps that they take. Such caution is not on display, unfortunately, in the state of Karnataka at the moment. The state government has produced a draft Bill that allows for jail terms of up to seven years for the production of fake news and other problematic content. The problems involved in the definition of “fake” have been punted down the road, and left to a special committee that the Bill also promises. While the intent of this piece of legislation is understandable, it is also an example of legislative overreach that will create as many problems as it solves. The Karnataka government has not properly considered the chilling impact it will have on free expression.

 

The Bill reflects a problem that goes beyond one state government. The authorities in India at all levels have become far too engaged with imposing restrictions on speech. The Union government has at various points amended the Information Technology Rules to give itself broader powers to impose restrictions on online platforms. In September last year, the Bombay High Court invalidated an aspect of these changes that essentially empowered a government “fact check unit” to order the removal of news items from the Indian internet. State governments, which bear primary responsibility for law and order, have not been slow to find ways to similarly empower themselves to restrict free speech. Multiple states have also set up similar “fact check units”. But some have gone further. The state of Maharashtra, for example, has proposed a Bill against so-called “urban Naxals” — a term used frequently not for the real far-left-wing militants, who are thankfully a vanishing problem today, but for run-of-the-mill dissenters, especially in academic settings. Even aside from legislation of this sort, Indian authorities at state and local levels have become far too addicted to ordering complete shutdowns of the internet for “law and order” reasons. This is sometimes ordered by relatively low-level functionaries.

 

India’s greatest constraint when it comes to development is bureaucratic and regulatory capacity, particularly at state level. It is unfortunate that an increasing amount of this scarce capacity is being diverted towards mechanisms meant to channel, influence, or restrict the freedom of expression in the country. This is a violation of constitutional requirements as well as a betrayal of the development aspiration of the country’s population. It is vital that India’s governments step back and reexamine their approach. Contract enforcement is lax, and investigations are delayed. Is it necessary and appropriate to add new criminal offences and investigations in the name of tackling fake news or “dangerous” expression? The broad intent of the Union government to reduce the amount of criminalisation within the legal framework is laudable. This principle should be applied in matters of governance in general.