At the end of January, Twitter was involved in a political conundrum in India, because it complied with the government request to ban controversial hashtags, users, and tweets from its platform. The India government argued that the tweets and accounts were defamatory and a threat to national security. As such, it requested the gag order under the provision of the Information Technology Act of 2000 (Section 69A). In truth, the tweets and accounts were by and of Indian citizens joining the Indian farmer’s protest against the three controversial farm bills expedited through Parliament proceedings. The bills present a deregulation of the agriculture sector in India, allowing business to run outside of the government established wholesale markets. This altercation is one of many examples in which Twitter, and other social media platforms, are involved with significant political events, reframing the relationship between the citizenry and the government.
Digital Constitutionalism at the Intersection of Law and Politics
In the broad field of Constitutional theory, two main paradigms can be acknowledged. One correlates law and politics with a moral conception of the state, framing discussions in a normative perspective that includes a metaphysical conception of what constitutional law and theory is or should be. The other frames the relationship between law and politics without resourcing to metaphysical considerations. These different paradigms can also inform the scholarship surrounding digital constitutionalism. A normative perspective perceives constitutionalism in the digital space through the lens of the normative reactions to the new modes of governance established beyond the nation-state paradigm. This view includes considering the constitutional character of legislation at the international and supranational levels concerning data protection and content moderation.
In addition to this normative perspective, we argue that a political perspective of digital constitutionalism would address the socio-political implications of privatizing political deliberation through social media platforms. Therefore, beyond conveying the principle of the rule of law towards private actors in the digital space, a constitutional critique of social media platforms must address their exercise of power and governance, which in many times fails to capture the extent of accountability and self-government embedded in the traditional scope of constitutionalism. This consideration includes critical analyses of how the internet and social media platforms moderate discourse and their role in enlarging the political divide and strengthening autocratic populist discourse.
The clash between Twitter and India’s government highlights the deficiency of the political perspective of digital constitutionalism in the understanding of the role of social media platforms in reframing the relationship between citizenry and government. Nowadays, these platforms have become the foremost deliberative sphere where political discussion and disagreement are held, but one must not forget that, as private entities, their societal purposes are bound to a specific business model (surveillance capitalism), with profit being its foremost expected outcome.
Reframing the issue – Digital Constitutionalism and National Constitutions
The Constitution of India guarantees the fundamental right to peaceful protest to all Indian citizens. While Article 19 (1)(a) prescribes the freedom of speech and expression, Article 19 (1)(b) assures the right to assemble peaceably and without arms. Further, there is a regulatory mechanism of reasonable restrictions for the two rights under Articles 19 (2) and 19 (3), respectively. In Ramlila Maidan Incident v. Home Secretary, Union of India & Ors., the Supreme Court of India had stated that the freedom of speech is the bulwark of democratic government and is essential for the appropriate functioning of the democratic process. It further stated that freedom of speech and expression must be regarded as the first condition of liberty in the hierarchy of liberties granted under the Indian constitutional mandate.
The right to protest is bound to the political perspective that grounds the legitimacy for the exercise and limitation of power. Freedom of assembly, speech, and protest are intimately related to the notion of self-government, accountability, and the effective exercise of government for and by the people. These considerations are rooted in the framework of constitutionalism, allowing what Teubner describes as the spontaneous co-evolution of social ideas and legal form. However, these principles contrast with the framework and assumptions of internet governance, not becoming a part of the movement for digital constitutionalism.
After a second request from the Indian government to block other 1,100 accounts, Twitter refused to comply with the order, arguing that such an outright ban would go against the Indian Constitutional Law and their guidelines on freedom of expression and protected speech. Ultimately, in this particular case, Twitter positioned itself as the adjudicator for the freedom of speech of Indian citizens attempting to exercise their political rights. By initially complying with the government’s demand and then changing its policy to confront the Indian government’s request, Twitter highlighted the constitutional implications of social media governance and its complex relationship with national governments. In both scenarios, the platform endeavoured to maintain its semblance of neutrality while attempting to uphold a higher standard according to its regulation. However, Twitter’s intervention in the digital expression of political dissent by the protesters is reflective of a threat to its neutrality. In the aftermath, between the government’s attempt to silence legitimate protests and the moderation exercised at the discretion of private actors lie the citizen and the political rights recognized in national and international law. It is necessary to focus on the user, expanding and reaffirming its political rights without necessarily aligning with the interests that guide Twitter and other social media platforms.
Suggested citation: Lucas Henrique Muniz da Conceição and Shailesh Kumar, Digital Constitutionalism and the Right to Protest Online – A Political Perspective of Digital Dissent from India’s experience with Content Moderation, Int’l J. Const. L. Blog, Apr. 10, 2021, at: http://www.iconnectblog.com/2021/04/digital-constitutionalism-and-the-right-to-protest-online–a-political-perspective-of-digital-dissent-from-indias-experience-with-content-moderation/