By striking down this draconian section of the information technology act, the apex court has unshackled many online voices and given a new meaning to freedom of speech
By Somi Das
The assault on free speech has been all-pervasive in recent times. From films to beef, the government seemed on a banning spree. Perhaps the last straw was the arrest of a Class XI student under the Juvenile Justice Act for criticizing Uttar Pradesh minister, Azam Khan, on Facebook. Suddenly, India seemed to have become a Ban-ana Republic.
However, thanks to the Supreme Court, India is back to being a democracy that thrives on free speech. After a sustained effort of over two years, a bunch of individuals and groups won a hard-fought battle against the draconian Section 66A of the Information Technology (IT) Act, 2000, as the Supreme Court struck it down saying it was unconstitutional.
This contentious clause wasn’t present in the law when it came into effect in October 2000. With the advent of the cyber boom, the need to have specific laws dealing with cyber crimes, online frauds and those related to e-commerce was felt. That led to the creation of the IT Act, 2000. But in 2009, hasty amendments were made to the Act, including the contentious Section 66A.
Here’s what Section 66A says: “Any person who sends, by means of a computer resource or a communication device —
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.
The law made it easy to crack down on any online comment deemed annoying or offensive. The first arrest under this section was on October 30, 2012, after a Puducherry-based businessman, Ravi Srinivasan, allegedly called Karti Chidambaram, then finance minister P Chidambaram’s son, “corrupt” in a tweet. Then came the arrest of Shaheen Dhada and Renu Srinivasan for a Facebook post complaining about the shutdown in Mumbai after the death of Bal Thackeray. Srinivasan was arrested for merely liking the post.
This caught the attention of a young law student, Shreya Singhal. Within 10 days, she filed a PIL challenging the constitutionality of Section 66A. Several other petitions by groups like the People’s Union of Civil Liberties (PUCL), Common Cause and Mouthshut.com were clubbed with Singhal’s petition.
The petitioners had challenged the constitutionality of Section 66A on the grounds of vague terminology. It fails to define what exactly constitutes “offensive”, “inconvenience” or “annoyance”. They also contended that the law was a gross violation of Article 19 (1)a of the constitution that guarantees a citizen freedom of speech and expression. At the same time, the law isn’t consistent with 19(2) of the constitution that deals with eight specific circumstances under which the fundamental rights of a citizen can be suspended. A person’s freedom of speech in the offline world can be suspended only if it affects: (a) sovereignty and integrity of India, (b) the security of the state, (c) friendly relations with foreign states, (d) public order, decency or morality, (e) relation to contempt of court, (f) defamation or (g) incitement to an offence. On the other hand, in cyberspace, under Section 66A, a person’s fundamental rights can be breached merely for offending or annoying someone.
Various governments, too, have played a partisan role over this issue. In 2012, when the UPA government had cracked down on a series of Twitter accounts and other web pages by blocking them, Gujarat chief minister Narendra Modi was the first to raise his voice against such an undemocratic act. As a mark of protest, he changed his Twitter display picture to black and tweeted: “As a common man, I join the protest against crackdown on freedom of speech! Changed my DP. Sabko Samnati De Bhagwan (May God give wisdom to all).” But fast-forward to 2015, and the Modi government seemed no different from the UPA. It showed no inclination in amending or repealing the Act.
During the two-month debate on the case, prior to the judgment, additional solicitor general Tushar Mehta argued that “the mere possibility of abuse of a provision cannot be a ground to declare a provision invalid. Loose language may have been used in Section 66A to deal with novel methods of disturbing other people’s right by using the internet as a tool to do so. Further vagueness is not a ground to declare a statute unconstitutional.”
Mehta also argued that censorship on the internet should be more stringent than in the offline world. He said that the internet, unlike newspaper and films, is a technologically manipulative media as videos and photographs can be doctored. He also said that internet’s reach had no geographical boundaries. Anonymity of cyber miscreants was another concern of the government as was the issue of invasion of privacy.
However, none of these arguments made an impact as can be seen from the judgment delivered by Justices Rohinton Fali Nariman and J Chelameswar. It is an eye-opener in order to get an insight into the degree of freedom of speech guaranteed by our constitution. It is one of the finest texts on the issue.
Not only does the judgment decimate every point made by the government in defending the constitutionality of Section 66A, it chides it for framing a shoddy and irresponsible law that caused inconvenience and annoyance to many people.
The court says: “The enforcement of the said Section would really be an insidious form of censorship which impairs a core value contained in Article 19(1)(a). In addition, the said section has a chilling effect on the freedom of speech and expression. Also, right of viewers is infringed as such chilling effect would not give them the benefit of many shades of grey in terms of various points of view that could be viewed over the internet.”
The apex court also pointed out specific flaws in the Section that fail to make it a deterrent against reigning in rogue online elements who are a threat to communal harmony and national security. One example is the bulk SMSs and MMSs sent after the Kokrajhar riots in Assam to whip up communal violence, leading to exodus of people from the North-East.
The judgment says: “No distinction is made 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 casual connection with public disorder, security of state etc.
“The section makes no distinction between mass dissemination and dissemination to one person. Further, the Section does not require that such message should have a clear tendency to disrupt public order.”
On the government’s assurance that the law would not be used against political dissent and would be only “administered in a reasonable manner”, the court displayed amazing foresight when it pronounced: “Governments may come and governments may go but Section 66A goes on forever. An assurance from the present Government even if carried out faithfully would not bind any successor Government. It must therefore, be held that Section 66A must be judged on its own merits without any reference to how well it may be administered.”
UPHOLDING TWO CLAUSES
However, the court did not yield to the petitioners’ demand for declaring null and void two other sections of the Act—Section 69A and Section 79. Section 69A deals with the powers vested on the designated authority appointed by the government to issue directions for blocking public access to any information (read web pages and sites) through any computer resource. And Section 79 deals with the provisions under which intermediaries like Facebook, Google, Twitter would not be liable for third-party information. However, in the absence of due diligence, they could be punished for holding third-party material.
The apex court upheld the constitutionality of both these clauses on the ground that they weren’t vague like Section 66A and there were enough checks and balances to ensure safeguard of the interests of the intermediaries. This served as a huge setback to the activists.
Advocate Apar Gupta, who represented PUCL says: “It is a setback. But we have to constantly engage with the law. Secondly, if a certain provision of the law is constitutional, it does not mean it is desirable. In a constitutional challenge, the court is only looking at the threshold of the law which permits legislation. It is not looking at its moral desirability.”
Class XI student was jailed under Section 66A for comments against UP minister Azam Khan on Facebook
TACKLING CYBER BULLIES
A thorough reading of the Supreme Court judgment also leaves one with a sense that IT Act 2000, barring its few contentious clauses, is reasonably well-equipped to handle cyber crimes and takes care of concerns relating to online frauds, national security and child pornography. The judgment explains this:
- Under Section 66B, whoever dishonestly receives any stolen computer resource or communication device is punished with imprisonment.
- Under Section 66C, whoever fraudulently or dishonestly makes use of any identification feature of another person is liable to punishment with imprisonment.
- Under Section 66D, whoever cheats by personating becomes liable to punishment with imprisonment.
- Section 66F again is a narrowly drawn section which inflicts punishment which may extend to imprisonment for life for persons who threaten the unity, integrity, security or sovereignty for publishing or transmitting obscene material including depicting children in sexually explicit acts in electronic form.
What, however, remained uncovered and came under the ambit of Section 66A was threat to an individual by cyber bullies or cyber stalkers. How does a child safeguard himself against online bullying by classmates or seniors? Or how does a woman protect herself against a cyber stalker?
There was a specific case in 2013 in Jalandhar, where a harrowed Sikh man filed a complaint under Section 66A after being bombarded with racial jokes on WhatsApp despite his constant plea that the jokes hurt him. The complaint led to the immediate arrest of the accused, who got bail only after cooling his heels in jail for two weeks. In the absence of Section 66A, will cyber bullies now have a free run?
Gupta allays such fears, saying there are specific provisions in the CrPC that can be invoked to counter such bullying or stalking. He says cyber stalking is squarely covered by the Criminal Amendment Act 2013 passed by parliament in the aftermath of the Nirbhaya gangrape case.
However, cyber expert Pawan Duggal doesn’t have much faith in general sections of the IPC in reigning cyber bullies. He says: “Whatever little deterrence that Section 66A exerted, now stands null and void. While there are general provisions in the IPC, they are not enough to tackle the menace of cyber bullying, the number one problem in Indian schools and colleges today.”
Duggal feels that it is high time the government gave a helping hand and provides effective legal remedies for victims of cyber bullying.
Meanwhile, flaws in existing laws, such as Section 66A, can be used as tools for political vendetta. With the Supreme Court setting a new precedent in interpreting such loose laws, government officials and lawmakers must exercise their mind when deciding what exactly constitutes online and offline freedom of speech before trying to curb it.