The input from ten brains is almost always better than the input of one—provided that you collaborate properly. —Karuna Nundy

Background

One of India’s highest-profile digital rights cases, Singhal v. Union of India invalidated Section 66A of the Information Technology Act of 2000. Decided by the Supreme Court of India, the case struck down provisions of a parliamentary statute that had allowed law enforcement to arrest and fine publishers of offensive online speech. The court also read down India’s notice-and-takedown provisions, but upheld the government’s ability to block websites through internet service providers, provided they gave reasons for blocking.

Facts

The case was initially sparked by the online Facebook status update of two teenage girls. After transportation and services in the city of Mumbai were shut down in preparation for the funeral of a right-wing political leader, a teenage girl posted a statement on Facebook criticizing the city’s decision. In response to a complaint filed under Section 66A of the Information Technology Act of 2000, Mumbai police arrested the girl, as well as her friend who had “liked” her post on Facebook.

The arrests drew the attention of 21-year-old Indian law student Shreya Singhal, who felt the law violated the right to free speech provided for by India’s constitution. Public Interest Litigation in India allows any individual to approach an Indian appellate court with an issue of public interest, so Singhal filed her petition with India’s Supreme Court, calling for the repeal of Section 66A of the IT Act. Section 66A made it a criminal offence to send “annoying” messages to another person. According to Singhal, the language of the statute was vague, and had therefore been misused to censor innocent speech. The law’s protection against annoying, grossly offensive, and menacing speech was unconstitutionally vague, and had been broadly applied.

Lawyers for the People’s Union for Civil Liberties (PUCL), India’s oldest and largest civil liberties and human rights organization, were already working on a comprehensive petition that challenged not only section 66A, but also intermediary liability and website blocking rules. Since Singhal had decided to go to court first, they joined arguments and filed their petition. Other petitioners also began to file cases challenging other laws, including the constitutionality of Section 118d of the Kerala Police Act, a law which had similarly been used by law enforcement to arrest speakers for online speech considered an “annoyance” or “indecent.” Public support mounted, and many carefully watched the proceedings in court.

Outcome

Three years later, the Supreme Court affirmed the value of free speech and expression by agreeing with the petitioners and holding that Section 66A made no distinction “between mere discussion or advocacy of a particular point of view, which may be annoying or inconvenient or grossly offensive to some, and incitement by which such words lead to an imminent causal connection with public disorder, security of State, etc.” Section 66A was too vague, the court said, and could therefore apply as an insidious form of censorship that produced a chilling effect that discouraged expressions of dissent. The court also struck down Section 118d of the Kerala Police Act for the same reasons.

Along with Section 66A, the court ruled on Sections 69A and 79 of the Information Technology Act. According to the court, Section 69A constitutionally allowed the government to block websites and take down content because the law was narrowly tailored. The court further held that Section 79—which allowed the government to hold intermediaries accountable if they had actual knowledge of an infringement—was constitutional. However, the court clarified the definition of “actual knowledge,” and required that government submit a judicial order to disable any content. Overall, the decision was perceived as a triumph of free speech jurisprudence, lawyering, and activism.

Collaboration

The case attracted sizable interest: around seven lawyers led arguments in court, with 15 counsel actively supporting. Multiple research institutions offered input, and academics regularly communicated with lawyers to support the drafting of petitions and preparation of arguments. One news report cited that altogether, over 90 attorneys contributed to the petitions, hearings, and arguments before the court. While work on the petitions was hierarchically structured, the work culture was far more collaborative than usual. The overall campaign outside the courtroom took shape without a central organization or actor to manage the strategy and the various actors, many of the lawyers agreed that the multiple sources of informal collaboration amongst academics, technologists, journalists, and advocacy organizations were instrumental to the Court’s final decision to strike down the law.

The arrests also sparked mass media coverage of the case, including a week of primetime broadcasting on national television. Already, various groups had begun discussing the potential arguments to present to the court. Singhal’s petition mobilized lawyers, free speech advocates, academics, and journalists to begin drafting their own petitions. Apar Gupta, an advocate who assisted the PUCL in filing its petition, said many could sense that the case was a watershed moment for the country’s development of fundamental and civil rights on the internet.

Singhal’s petition was followed by filings from organizations like the PUCL, the Internet and Mobile Association of India, and NGO Common Cause, as well as consumer review website MouthShut.com. While other provisions were challenged in Singhal’s petition and subsequent filings, because nine of the ten petitions sought to repeal Section 66A, it soon became known as the “Section 66A case” in the country.

Amongst the dozens of attorneys, collaboration was loose; while strategy and argument drafting were led by lawyers of each petition, no central organizer coordinated the various parties, and some litigators chose to work independently. This occasionally created friction between competitive attorneys who rushed to file first in the court, and during hearings when justices dismissed lawyers repeating arguments already voiced by previous lawyers. Others, however, initiated informal conversations with researchers and technologists to gauge the strength and interest of the case. Karuna Nundy, a prominent advocate of the Supreme Court and lawyer for the PUCL, remembered setting up conference calls with lawyers, researchers and technologists at the Centre for Internet & Society in Bangalore (CIS) and the Centre for Communications Governance at National Law University of Delhi (CCG). Like many advocates, Nundy was an experienced litigator, but had less experience with the issues of intermediary liability or mechanics of website blocking that required an understanding of internet technology.

“I realized I had to ramp up knowledge very quickly,” said Nundy. “They were my resources, my committee if I had a question or formulation. That steep learning curve from 2011 that culminated in arguments in the case was invaluable, and tech law is now an important and habitual part of my practice.”

After several months of research, writing and editing during which Nundy circulated drafts amongst her network of researchers and activists, the PUCL filed its petition in the Supreme Court. This type of collaboration was rare for Supreme Court cases, said Nundy, but she stressed that inviting various perspectives and technical expertise to identify arguments was critical. These, she emphasized, included not only the perspective of tech and free speech perspectives but also those of women’s groups, anti-caste and child rights organizations that face the brunt of abuse online.

Outside the courtroom, others supported some of the lawyers in the case and were instrumental in actively convening strategic meetings between various cross-disciplinary stakeholders. Raman Jit Singh Chima, at the time Google’s Policy Counsel and Government Affairs Manager when the case started, and later became Access Now’s policy director, subsequently assisted lawyers involved in the case’s final arguments. He gathered industry professionals, government officials, and lawyers to engage with the legal issues, and recognized that published papers might buttress a few lawyer’s arguments.

At the same time, major research institutions like CIS and the CCG also served as consultants for lawyers throughout the case. The legal arguments in the petitions were supported by some academic papers and research these organizations produced. Research institutions also had the bandwidth to pursue other avenues: CIS was one of the first dynamic players in the field and had already published thoughtful research papers on the Information Technology Act and Rules, interacted with government and convened various actors on the issue. CCG was then engaged in research on intermediary liability. They submitted the report to the Supreme Court during the hearings. Sarvjeet Singh, a Programme Manager at CCG, was present at all court hearings and acted as a direct communication channel between lawyers and institutions. Chinmayi Arun, Executive Director of CCG, remembered her researchers fielding lawyers’ legal questions via text from Singh on-site at the court. Those who attended the hearings documented the arguments, and these notes were circulated amongst lawyers to serve as a reference and archive of the case proceedings.

The role of these institutions was crucial because while the legal academy in India was relatively young, research institutions provided the firepower and resources to support lawyers. To keep the public informed, lawyers would live tweet proceedings, and provide brief sound bites as they exited the court. Some litigators periodically held press briefings and communicated updates to major news organizations.

Lessons Learned

In many ways, the movement benefited from a set of lucky external circumstances. Though the initial two-judge bench was unfamiliar with social media platforms like Facebook, after a rotation, the second bench understood the potential for abuse of a law criminalizing offensive online speech. Justice R.F. Nariman, who was previously Solicitor General of India, was digitally literate, and easily followed the facts of the case, eventually wrote the judgement. The Indian legal system also uniquely allowed multiple petitioners to file independently on an issue; with so many advocates gathered in the same courtroom, the parties organically formed channels to exchange information and pool resources. According to some, media coverage also played to public sentiment in its coverage of the arrests of the two teenage girls, creating sympathetic plaintiffs. Shreya Singhal herself was born into a well-connected family of eminent lawyers. And India’s digital rights community was familiar with arguments against internet censorship regulation due to regular information input by organizations.

The greatest challenge for the case, many agreed, stemmed from a lack of trust; many cases in India reflect an incentive structure that promotes competition between lawyers and individualistic work. In the Singhal case, parties were far more collaborative than usual, but due to the popularity of the case, many were prompted to sprint and file their petitions. Other lawyers avoided working relationships to attain greater public acknowledgement for their own input. Individual petitioners and counsel sometimes approached press for publicity that brought no value to the petitions. These issues were not exclusive to the Singhal case, and in fact plague most litigations in India. But nevertheless, actors’ unwillingness to collaborate engendered the same challenges.

Regarding strategies for filing briefs, technological issues like online speech posted on social media platforms were straightforward, and therefore more approachable for justices. On the other hand, the nuances over the proper enforcement of intermediary liability for online speech were more difficult to understand. These issues sparked disagreements amongst lawyers over whether engaging justices on these issues was disadvantageous. Since each individual attorney could not independently impede the other parties from including the same arguments in their own briefs, most filed without adequate preparation or consulting others.

As a result, arguments that did not receive scrutiny from multiple perspectives, lacked support from a coalition, or required more research were noticeably less effective. Lawyers that were not properly prepared to champion these arguments in court not only capitulated under the judge’s questions, but also prevented other lawyers from addressing the same issues.

Another set of specific challenges to collaboration were the gender dynamics at play. Most of the teams involved in the case were comprised of a majority of men. Nundy, the only woman lead counsel who argued in this case, took a collaborative approach to the submissions made on behalf of her client, and included policy players in the field. Giving these actors a voice in the case was important, she believed, and more so given the greater impact of a Supreme Court litigation on transformations of policy into law. 

However, some of the men involved in the field of tech policy and law seemed to take this consultative approach as a sign of weakness and an invitation to assert dominance. “Given power plays and mansplaining, it took additional energy to keep work culture collaborative and decision making hierarchical—both of which I was and am dedicated to,” Nundy explained. “It was bewildering to have legal concepts explained to me, including on issues I had won cases on myself in 15 years of practice.” Arun said: “For men who are not used to working with women on equal terms, a little investment in learning to see, hear, value and respect women as experts and professionals would go a long way. More resources and expertise can only mean better outcomes.”

Nundy stressed the importance of giving due credit to women in collaborative efforts, and continues to actively engage women in her work, both inside and outside the courtroom. This is something Arun also puts into practice, stressing the importance of taking a collaborative approach across the board: “I have always considered empathy the cornerstone of collaboration. At CCG, we like to begin with the question of what we can give, not what we can take. I would say that our longest standing collaborations are with people who like to do the same. You grow so much through collaboration if you come to it expecting to learn, self-correct and change.”

In the end, groups that overcame these challenges constructed longer-lasting relationships that later proved advantageous in campaigns beyond the case itself. The final decision to strike down Section 66A was due in large part to the active efforts to collaborate amongst diverse actors. Information sharing and regular meetings created a piecemeal strategy for planning petitions, supporting arguments in court, debriefing, and sustaining relationships for future campaigns. Ultimately, the Singhal case helped demonstrate that the events in a courtroom are one in a series of events that, if harmonized, are more likely to achieve a final goal.

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