Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994, do not specifically pertain to speech on electronic media, but they prohibit certain kinds of speech and are used to book charges against speech and expression on the internet as well. Laws and policies on infrastructure The Telecom Regulatory Authority of India (TRAI), established by the Telecom Regulatory Authority of India Act, 1997, has powers to regulate the telecommunications sector, with the mandate of protecting the interests of service providers and telecom subscribers while ensuring orderly growth of the sector. We will examine the connections between regulation of one aspect of this debate, that of network neutrality, and the right to freedom of speech and expression. Network neutrality is the principle that the internet is maintained as an open network, where network operators do not discriminate on the basis of origin or destination of traffic. Preserving network neutrality is central to making sure that the internet’s potential of being a medium where freedom of speech and expression thrives can be realised. Other laws Laws on intellectual property rights (IPR) aim to strike a balance between protecting ownership and property rights, on the one hand, and not infringing on free speech, on the other. In copyright law, for example, fair use exceptions are forwarded as speech protecting where the public good is greater than the value derived from individual benefits of intellectual property. In the section on IPR, we look at the unique challenges that Indian laws on IPR pose to freedom of speech and expression. Draft laws Finally, a number of key bills and draft policies have been proposed on content and infrastructure regulation of electronic media which affect freedom of speech and expression. These include the Draft Prohibition of Indecent Representation of Women and Children Bill, 2012, the Draft Geospatial Information Regulation Bill, 2016, the Draft National Encryption Policy, 2015, and a forthcoming draft data protection policy. New provisions to address hate speech have been proposed as well, including to fill alleged gaps in the law that have emerged after the Supreme Court struck down as unconstitutional section 66A of the IT Act in 2015.10 10 Shreya Singhal v. Union of India. AIR 2015 SC 1523. Criminalisation of online freedom of expression Because of their far-reaching consequences for the speaker, criminal charges to restrict speech and expression can be a powerful tool of censorship. Between 2009 and 2015, one provision of Indian law in particular became notorious for its chilling effect on freedom of expression online. Section 66A of the IT (Amendment) Act, 2008, provided for punishments for messages that were “grossly offensive”, had a “menacing character” or were sent “for the purpose of causing annoyance or inconvenience,” among other overly broad grounds. Following a slew of high-profile cases that involved abuse of the section, the provision’s constitutionality was challenged in Shreya Singhal v. Union of India.11 On 24 March 2015, the Supreme Court of India ruled that section 66A IT Act was “violative of Article 19(1) (a)” and could not be saved under Article 19(2), and struck down the provision in its entirety. For those concerned with freedom of expression online in India, the verdict provided tremendous relief. But many challenges remain. For one thing, even following the Supreme Court’s ruling, section 66A IT Act continues to be invoked by the police and lower courts.12 In addition, freedom of expression online continues to be threatened through criminalisation in other ways that are not acceptable, on six grounds in particular: criminal defamation; sedition and the use of national symbols; contempt of court; hate speech; morality, obscenity and expressions of sexuality; and intellectual property rights. What connects these different challenges is the deep influence of a concern for law and order in free speech jurisprudence in India. In particular, in State of U.P. v. Lalai Singh Yadav,13 the Supreme Court upheld “ordered security” as a constitutional value, ensuring that where free speech and public order seem to clash, the latter is given precedence. Though there have been dissenting voices, this remains the dominant strand in free speech jurisprudence to this day and has led to a situation where, rather than the government having to ensure an environment in which everyone can speak freely, those who are speaking are expected to exercise 11 AIR 2015 SC 1523. 12 Mareedu, M. (2017, 8 April). Local court invokes annulled Sec 66A to convict a man. New Indian Express. www.newindianexpress. com/states/telangana/2017/apr/08/local-court-invokesannulled-sec-66a-to-convict-a-man-1591308.html; Jha, A. (2016, 1 September). 2,000 Arrests In 12 Months, 3,000 In Just 3? How Cops Use 66A Even After SC Scrapped It. Youth Ki Awaaz. https://www. youthkiawaaz.com/2016/09/66a-it-act-ncrb-crime-statistics 13 AIR 1977 SC 202. 52 / Unshackling Expression