Indian social media has been struggling with the spread of ‘fake news’ by political parties in the past few years. In 2019, a Facebook researcher, studying the extent of disinformation in India reported that Indian Facebook was brimming with ‘hate speech, inflammatory anti-Muslim content and celebrations of violence.’ In this context, disinformation refers to the deliberate deception and manipulative narration of facts. Facebook (now Meta) has been unable to curb this disinformation owing to the lack of resources put towards monitoring and regulating problematic content in India’s 22 official languages and varied cultural and political contexts.
This unrestricted circulation of disinformation has obstructed Indian citizens’ mental autonomy: the cognitive ability to think and form opinions freely. Coercion here means not just the use of force or threats but also the exercise of control through exploitation of an individual’s fears. Thus, in light of Indian political parties utilizing their online presence as a tool to polarize communities, radicalize internet users and canvass votes, it has become urgent to explore the right of mental autonomy in India.
Mental Autonomy in India: A Legal Right?
The right of mental autonomy is understood as the sovereign ability to control one’s own mind. It forms the basis of all other rights and is central to the study of law through the concept of informed consent. Article 19(1) of the International Covenant on Civil and Political Rights (ICCPR) guarantees this right and its absolute nature. This article lays down three prongs, namely the right to not reveal opinions, the right to form opinions free of any manipulation or coercion, and the right against penalty for holding an opinion. In India, the right of mental autonomy has not been explicitly guaranteed but has been implicitly referred to through judicial pronouncements. In 2010, in the landmark judgement of Selvi v. State of Karnataka, the Supreme Court of India expanded the right of privacy to include an individual’s control of their bodily and mental functions. This case was concerning the constitutional validity of narcoanalysis, brain mapping, polygraphy tests, BEAP (Brain Electric Activation Profile), and other such neuroscientific investigative techniques for the purpose of gathering evidence against accused persons. While concluding that evidence collected from the coercive use of such techniques was illegal, the court affirmed an individual’s right of privacy with regards to their thoughts as well.
A similar conclusion was reached in K.S. Puttaswamy v. Union of India. This case was concerning the constitutional validity of the Indian government’s Aadhar Card (a form of uniform biometrics-based identity card) scheme which was mandatorily required of all citizens to access any government benefits or services. In this case, the nine-judge constitutional bench of the Supreme Court of India, while upholding the right to privacy as a fundamental right under Article 21 of the Indian Constitution, understood autonomy as a part of privacy. Here, Justice Chelameswar defined privacy as including ‘repose, sanctuary and intimate decision’ and highlighted the importance of people’s freedom to choose the kind of music, literature, or art they enjoyed. Justice Nariman, Justice Bobde, and Justice Chandrachud also emphasized the importance of ‘choice’ in safeguarding the decisional autonomy of an individual.
Nonetheless, while the right of mental autonomy has been implicitly guaranteed via judicial decisions, it has not been affirmed through any legislative backing in India. This is perhaps owing to the assumption that the inner sanctum of our minds is outside the purview of any form of intervention.
Fake News in India as a Political Tool
The dearth of data privacy laws in India has resulted in political parties using fake news and other subversive propaganda as a tool to attack citizens’ mental autonomy and implement societal control. Due to digitization, the approach of Indian political parties has shifted from capturing the attention of masses to microtargeting individual users with tailor-made messages. Disinformation campaigns in India are allegedly carefully orchestrated operations carried out by armies of bots and volunteers linked to Indian political parties. While disinformation leading to explicit public harm or disorder is prohibited under sections 153 and 505(1) of the Indian Penal Code and section 54 of the Disaster Management Act, other forms of disinformation are protected under free speech in India.
The primary national candidates of Indian elections, namely the Bhartiya Janata Party (BJP) and the Indian National Congress (INC), are accused of deploying bots (automated accounts that post on the basis of social media algorithms) to intentionally spread disinformation online in furtherance of their agendas. For instance, in the 2019 elections, the BJP are suspected of deploying around 1.2 million bots against the INC’s 800,000 bots. Typical disinformation included inflammatory posts aimed at broadening the Hindu-Muslim divide in India, including false claims such as 39,000 out of 40,000 rapists in India being Muslims, a Hindu girl being harassed by Muslims in Muzaffarnagar (which later resulted in violent riots), and the Indian army attacking terrorist camps in Pakistan. The BJP even created an official app of the Indian Prime Minister Narendra Modi (the NaMo App) which is seemingly inundated with disinformation.
Towards an Autonomous Mind
The internet is particularly vulnerable to the spread of disinformation owing to its algorithmically-driven nature and reliance on ad-revenue. Fake news is often amplified in online settings due to ranking algorithms which filter dissenting voices and radicalize communities. In India, this polarising nature of the internet is exploited by political parties as a part of their election campaigns. Its effects on the mental autonomy of Indian citizens directly affect the quality of Indian democracy. In light of this, India must penalize disinformation and balance its citizens’ right of mental autonomy with freedom of speech and expression. By doing this, Indian citizens would be guaranteed a truly autonomous mind which is essential to the exercise of any freedom in a democratic nation.
Padmakshi Sharma is a final year student of law at Symbiosis Law School in Pune, India. She is interested in the intersection of constitutional and criminal law.