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About Padmakshi Sharma

Padmakshi is a final year student of law, at Symbiosis Law School, Pune, India. She is interested in the intersection of constitutional, administrative and criminal law.

Image description: The words ‘fake news’ containing the word ‘propaganda’ inside the letters.

Concern is mounting over the increase in disinformation or “fake news” spreading across Indian social media platforms in recent years. Social media giants including Facebook have struggled in deploying resources to curb disinformation, particularly the dissemination by political parties of subversive propaganda during elections or events such as the COVID-19 pandemic. In this context, the right to mental autonomy and freedom to form opinions in India is of importance.

The Right to Mental Autonomy

The right to mental autonomy can be understood as the sovereign ability to control one’s mental functions. This right is central to law through the doctrine of informed consent, and is considered to be the basis for all other rights. Article 19(1) of International Covenant on Civil and Political Rights (ICCPR) and Article 19 of Universal Declaration of Human Rights (UDHR) each embody this right.  Under UDHR, the right of opinion is combined with the right of expression and is subject to Article 29(2) which provides for general limitations. However, under ICCPR, this right is absolute and has 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. Various regional treaties and laws from nations including the United States (US), United Kingdom (UK), Canada, Japan and Australia have also incorporated this right. However, despite this, the right to mental autonomy and freedom of thought has received little attention from courts elsewhere. This can be attributed to the assumption that thoughts alone are beyond the scope of state regulation. However, now that technology has facilitated the manipulation of individuals’ thoughts and opinions through disinformation, this right is of topical significance.

Fake News in India: Does it affect Indian citizens’ mental autonomy?

India has over 749 million internet users and is ranked as the second largest online market worldwide. In this context, all iterations of advertising, advocacy or broadcasting on the internet cannot constitute infringements of mental autonomy. However, deliberate efforts to influence or manipulate the public by non-consensual means can be reasonably viewed as an infringement on mental autonomy. In fact, during the negotiation of the ICCPR, in refuting Belgian’s claims that mental autonomy of a person could not be controlled, the UK stated that tyrannical governments often regulate the public’s mental autonomy by controlling sources of information.

In India, the spread of disinformation or fake news is neither unintentional nor inconsequential. It is a carefully orchestrated operation, often carried out by armies of bots linked to Indian political parties, analysing and microtargeting the user base centred around (typically non-consensually) collected data. Disinformation is dangerous for its ability to cause harm to public order by means of riots and panic, such as the video fuelling the Muzaffarnagar riots in 2013 and the child kidnapping rumours which led to a lynch mob in Jharkhand. Such disinformation leading to public disorder is prohibited under sections 153 and 505(1) of the Indian Penal Code and Section 54 of the Disaster Management Act. However, India has no laws prohibiting fake news and disinformation which does not result in harm to public order. Thus it is lawful to observe Indian ministers passing off Russian street electrification as Indian, to circulate fake videos of Indian Air Force attacking terrorist camps in Pakistan, and for  political parties to deploy thousands of bots to create WhatsApp and Facebook groups (and sometimes apps) to push their agendas through intentional spread of disinformation before elections.

Social media is algorithmically-driven and rewards inflammatory content that polarises communities, adversely affects elections and radicalises (and deradicalises) users. The free circulation of such content acts as a coercive hindrance to an individual’s ability to think and form opinions autonomously. “Coercion” should not be limited to the use of threats or force, but should extend to the exercise of control via exploitation of a person’s fear and anxiety. This context demands that India follow the footsteps of countries such as Singapore, Germany and France by penalising fake news and balancing its citizens’ right to mental autonomy against the right to freedom of expression.

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