Methodology To research and write this report, we examined three different types of sources. First, we looked at all the laws and related rules that have an impact on freedom of expression online. Second, we considered case law in higher courts that has had a profound influence on the promotion and protection of the right to freedom of expression in India, including as it relates to the internet, or that has the potential to do so in the future. Finally, we also took into account media reports of charges booked by the police – even if those cases did not eventually result in a conviction – to be able to flag chilling effects, heckler’s vetoes,7 as well as implementation challenges. We found that six grounds for restriction, in particular, are being used to criminalise free speech on the internet in ways that are not acceptable. These are defamation; sedition and the use of national symbols; contempt of court; hate speech; morality, obscenity and sexual expression; and intellectual property rights. In addition, we found five other legal and policy challenges relating to freedom of expression on the internet that are crucial to understand the broader landscape of digital censorship in India: government powers to block content; India’s intermediary liability regime; the epidemic of network shutdowns in India; concerns around net neutrality; and digital surveillance in India. The substantive analysis of these challenges starts in the fourth section. However, for those not familiar with the Indian legal landscape, we want to first outline the different types of law that affect freedom of expression online in the country.8 Lay of the legal land Legal foundations The foundation for the freedom of speech and expression in India lies in Article 19(1)(a) of the Constitution of India, which states that all citizens shall have the right to freedom of speech and expression. It was explicitly held in Secretary, Ministry of Information and Broadcasting, Government of India v. Cricket Association of Bengal9 that the right to freedom of speech and expression includes the right to impart and receive information via electronic media. 7 8 9 In the strict legal sense, a heckler’s veto occurs when the speaker’s right is curtailed or restricted by the government in order to prevent a reacting party’s behaviour. https://en.wikipedia.org/ wiki/Heckler%27s_veto Our outline of the Indian legal landscape draws on the five-category framework of laws and regulations that affect online freedom of expression, developed by SMEX. Government of India v. Cricket Association of Bengal. 1995 AIR 1236. Article 19(2) lays down exceptions to this fundamental right. This sub-section identifies certain heads under which there may be reasonable restrictions to the freedom of speech and expression: 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. Laws that restrict freedom of speech and expression must be reasonable and fall within the contours of the subject matters listed in Article 19(2). Any legislation dealing with speech and expression on the internet can be challenged on the ground that it goes beyond the exceptions laid down in Article 19(2) of the Constitution. Along with the right to equality (Article 14) and the right to life (Article 21), Article 19 forms the foundation for liberty and equality under the Constitution. India’s obligations towards the right to freedom of speech and expression also stem from being a signatory to the Universal Declaration of Human rights and the International Covenant on Civil and Political Rights (ICCPR). The legislations that cover penal procedure and substantive law are the Code of Criminal Procedure, 1973, and the Indian Penal Code, 1860. The latter is a relic from the colonial period. These legislations continue to be used to book cases relating to speech on the internet as well. Governance of online and networked spaces Apart from the penal codes, the Information Technology Act, 2000 and the Amendment Act of 2008, as well as the rules framed under the Act, are other importants bases for the governance of electronic media, and consequently, for the criminalisation of speech and expression online. The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, governs India’s unique identity number project, which relies heavily on digital infrastructure and has ramifications not only for the right to privacy, but also for the right to freedom of speech and expression. Legislations such as the Protection of Children from Sexual Offences Act, 2012, also specifically prohibit some forms of speech and expression on the internet. Other legislations, like the Contempt of Courts Act, 1971, the Prevention of Insults to National Honour Act, 1971, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, and the Pre-Conception and Pre-Natal INDIA / 51