Consentia on Business Laws and Constitutional Laws

RISE AND FALL OF DRACONIAN SECTION 66A: IN THE LIGHT OF SHREYA SINGHAL V. UNION OF INDIA

  1. INTRODUCTION

On 24 March 2015, the Supreme Court of India pronounced a long waited verdict on the constitutional validity of provisions contain into the Information Technology Act, 2000.[1] The 123 pages of judgement is well reasoned, exhaustive in its analysis and will have far reaching consequences on the jurisprudential aspect of ‘freedom of speech and expression’. This judgement will also provide a significant impact on social media companies, e-commerce entities and other enterprises whose business is dependent on the internet. Shreya Singhal, a twenty four year old law student challenged the validity of the section 66A by filing a PIL in 2012 before the apex court. Her brave initiative and oscillation has created a benchmark in the legal history and also brought a gleam at the horizon of hope. Before discussing the rationale behind the breaking down of the section, we need to focus on the very fact that why this section was introduced by the Indian Legislature? This section came into force by an amendment in 2008 and why this was not opposed intensely at the initial stage? The next chapter will focus on this particular ground.

  1. HISTORY

The rapid revolution of internet, computers, ICTs[2] changed the lifestyle of the people and its rapid evolution also raised numerous legal issues and questions. New terminologies came into picture such as cyber world, electronic-banking, electronic-transaction, electronic-return etc. Though the emergence of technologies, cyber world internet facilities has a positive impact but it also appears as a peril before the society as internet is being used as a weapon of offence by the criminals. As a matter of situation prevailed in the society a new branch of jurisprudence emerged to tackle the cybercrimes. For the first time model law of economic commerce was adopted by the United Nations commission on international trade law (UNCITRAL) in 1996. United nation further adopted this law by passing a resolution on 1997. As India was a signatory of this model law, it had to revise its national laws as per the said model law, hence in the year 2000, India enacted the first law on information technology. The main objective of this Act was to provide legal recognition for transactions carried out through electronic means, to promote IT industry, facilitate e-governance and prevent cybercrimes.

The Information Technology amendment Act, 2008 is a substantial addition to the information technology Act 2000. This act was passed by the Lok Sabha on December 23, 2008 with almost no discussion on it. The Act was passed by a reactionary measure after the wake of Mumbai terrorist attack on November 26, 2008. The communication Act, 2003 of United Kingdom was taken into consideration by the Indian legislature for the amendment of IT Act, 2000. Section 127 of the very Act talks about the improper use of public communications network. Section 127 is derived from several older laws with an intention to prevent people from sending messages over public service facilities.

With the object to prevent cybercrime, India borrowed the substance of section 127 of communication Act, 2003 and implemented it on Information Technology (Amendment) Act, 2008 and as a product of this amendment a new section ‘66A’ was introduced which prescribed punishment for sending offensive messages through communication service. The statement of object and reasons appended to the bill which introduced the amendment Act, stated in paragraph 3 of the bill. [3]The information technology amendment bill, 2006 was passed by both the houses on December 23, 24 in 2008 and it came into force ten months later. After an intensive opposition made by many political leaders, this bill was passed with gaining an exquisite support of UPA chairperson Sonia Gandhi. In the bill of 2006 the penalty for section 66A was up to 2 years but it was changed on December 16, 2008 through an amendment moved by the erstwhile minister of communication and Information Technology, Mr. A Raja to 3 years. This is the major difference of sec 66A of Information Technology (amendment) Act, 2008 and section 127 of communication Act, 2003, where the hinder has a punishment for 6 month imprisonment. Although the Indian penal code prescribes 200 rupees fine for criminal nuisance.

  • ABUSE OF THE SECTION

The abuse of section 66A knew no bound in the last few years when the country witnessed how the political juggernauts openly exploited it. When a common man tweeted that the Union finance minister’s son Karti P Chidambaram has amassed more wealth than Robert Vadra, he was arrested. Karti later tweeted: ‘Free speech is subject to reasonable restrictions. I have a right to seek constitutional/legal remedies over defamatory/scurrilous tweets.’ But he did not press any charges of defamation against that man as for that he would have had to prove defamation in the Court and the man wouldn’t have been arrested right away. On the other hand offences within the purview of Section 66A are cognizable and one would be arrested right away and then apply for bail.

There have been several instances of abuse of Section 66A before the former Telecom Minister’s colleague’s son put it to use. Jadavpur University professor Ambikesh Mahapatra and his neighbour Subrata Sengupta were arrested far back in April 12, 2012 for allegedly circulating a cartoon that lampooned West Bengal chief minister Mamta Banerjee. They were accused of emailing the cartoon based on a scene from Satyajit Ray’s popular movie Sonar Kella.

During September, 2012 free speech campaigner Aseem Trivedi was arrested by the Mumbai Police for publishing caricatures mocking the parliament and other high offices for corruption. The Mumbai Police’s cyber wing blocked Trivedi’s website, (www.cartoonasagainstcorruption .com), sparking a debate on freedom of expression in India.

Another shocking incident followed in November of the same year when Shaheen Dhada and Renu Srinivasan were arrested. They were arrested for posting their views against shutting down of the business capital of India during the funeral of Shiv Sena Patriarch Bal Thakrey. This was only two years after Section 66A had come into force. In the following year several more of such arrests were made merely at the whims of people holding important positions throughout the country. In May 2012, Air India cabin crew members Mayank Mohan Sharma and K V J Rao were arrested by the cyber-crime cell of Mumbai police for allegedly posting indecent jokes about the Prime Minister and other politicians and for insulting the national flag.  The year witnessed many more arrests like that of the Kishtwar youngsters from Kashmir, Kanwal Bharti from Uttar Pradesh, Devu Chodankar from Goa, Rajeesh Kumar from Kerala and many more. All-India Majlis Ittehadul Muslimin (AIMIM) leader and MP Asaduddin Owaisi was also charged under the draconian section for his alleged hate speech in the month of February this year which was followed by an even more ridiculous arrest of a class XI student from Bareilly. He was arrested by Rampur police for sharing an “objectionable” post on Facebook against senior Samajwadi party leader and state Urban Development Minister Azam Khan.

  1. REASON FOR QUASHING SECTION 66A

 

  1. Freedom of Speech and Expression

Before explaining the substance of Section 66A, Justice R. F. Nariman felt the need to analize the concept of freedom of speech and expression. He mentioned some robust excerpt from Shakespeare’s “Julius Caesar”, the three fundamental aspect of speech and expression, namely discussion, advocacy of particular cause and incitement. According to the court when either discussion or advocacy reaches the level of incitement there restriction comes. Court examined the provision of section 66A in the context of this principle and concluded that this section hindered the free flow of ideas by going against the spirit of freedom of speech and expression.

The court has further referred numerous Indian and foreign cases to explain the principal of freedom of speech and expression. The court examined the provision of section 66A (a) with other provision of different countries and justified that the terms ‘grossly offensive’ and ‘menacing’ is used unreasonably. Section 66A (b) was more problematic than it because “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.”[4] Surely it cannot be a legitimate legislative objective to restrict freedom of speech in order to prevent annoyance or inconvenience? Can a democratic society criminalise the causing of annoyance, inconvenience, insult or ill will? Causing insult or ill will or enmity could be a criminal offence if it amounts to defamation. However, insulting someone or causing inconvenience per se cannot surely be a crime in itself either in the real or virtual world.[5] The Court also pointed out that the terms used in Section 66A were vague, undefined and open-ended. Terms like ‘annoying’, ‘inconvenience’ and ‘grossly offensive’, as used in the provision do not point to a specific offence and leave both law enforcement agencies as well as the general public unsure of what is permitted and what is not.[6]

The solicitor general has argued the case with the reference of a major fact, that a relaxed standard of reasonableness of restriction should apply regard being had to the fact that the medium of speech being the internet differs from other mediums on several grounds.[7] The restriction of the print media is within a country but internet is used globally, the publication in the internet medium is accessible by everyone, no pre censorship is required for the publication in the internet unlike print or communication medium. By its very nature, in the mediums like newspaper, magazine, television or a movie, it is not possible to sexually harass someone, outrage the modesty of anyone, use unacceptable filthy language and evoke communal frenzy which would lead to serious social disorder.[8] But in the case of internet, it is much easier to do such thing by clicking a button and almost in all cases while ensuring anonymity of the offender. The right to freedom of speech and expression includes the right to disseminate to as wide a section of population as it possible. As a consequence of this, the court ordered the section to be vague and ambiguous as it did not satisfy reasonable restriction under the constitution of India.

  1. Clear and Present Danger

In State of Bihar v. Shailabala Devi[9], it was said that an article, in order to be banned must have a tendency to excite persons to acts of violence. The test laid down in the said decision was that the article should be considered as a whole in a fair free liberal spirit and then it must be decided what effect it would have on the mind of a reasonable reader. Viewed at either by the standpoint of the clear and present danger test or the tendency to create public disorder, Section 66A would not pass muster as it has no element of any tendency to create public disorder which ought to be an essential ingredient of the offence which it creates.

  1. Defamation

The freedom of speech and expression cannot be used to transgress the law relating to defamation. The word ‘defamation’ covers both crime and tort in Article 19(2) it means the entire law of defamation, civil and criminal. Every person possesses a right to his reputation and therefore nobody can so use his freedom of speech and expression as to injure another’s reputation. Thus it can be easily inferred that injury to reputation is the basic ingredient in order to make a statement defamatory in nature. The Supreme Court in its latest judgement pointed out that Section 66A does not aim at anything that is strictly causing injury to someone’s reputation. A statement can be grossly offensive or of a menacing character causing annoyance, inconvenience without affecting an individual’s reputation. It is clear therefore that the Section is not aimed at defamatory statements at all.

  1. Incitement to an Offence

It has been held previously that incitement to an offence did not refer to incitement to break the law. Thus an incitement to a breach of every civil law is not necessarily contemplated by Article 19(2).[10] Section 66A has no proximate connection with incitement to commit an offence.[11] The Supreme Court in the recent judgement has stated that information communicated over the internet necessarily ‘incite’ anyone at all. The information could be a part of some discussion, conversation or mere point of view expressed by an individual. Also, Section 66A which revolves around terms like causing of annoyance, inconvenience, danger, grossly offensive or having a menacing character are not offences under the Penal Code. They might constitute the ingredients of certain offences under the Code but are not offences in themselves. Section 66A has severely curtailed the information that can be disseminated over the internet based on whether it is grossly offensive, annoying, inconvenient, etc. and being unrelated to any of the eight subject matters under Article 19(2). Hence Sec 66A falls foul of the Freedom of Speech that is guaranteed by the constitution.

  1. Decency or Morality

The purpose of this restriction is to bar speeches and publications which tend to undermine public morality. In Director General, Directorate General of Doordarshan v. Anand Patwardhan[12], Supreme Court noticed the law in the United States and said that a material may be regarded as obscene if the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest and that taken as a whole it otherwise lacks serious literary artistic, political, educational or scientific value. In Aveek Sarkar v. State of West Bengal[13], Supreme Court referred to English, U.S. and Canadian judgments and moved away from the Hicklin test and applied the contemporary community standards test.

Section 66A cannot possibly be said to create an offence which falls within the expression ‘decency’ or ‘morality’ in that what may be grossly offensive or annoying under the Section need not be obscene at all – in fact the word ‘obscene’ is conspicuous by its absence in Section 66A.[14]

  1. CONSEQUENCES

Section 66A of the Information Technology Act, 2000 was considered a draconian law ever since it fell into the wrong hands. The politically powerful sect of the country abused it to great lengths with the assistance of the law enforcement officers of the country. The Supreme Court in its landmark judgement struck down the provision as it was trampling over the freedom of speech of the citizens of this country. But even the Fundamental Rights guaranteed under Art 19(1) (a) are not absolute and come with reasonable restrictions. The very reason the reasonable restrictions come into the picture is because if every person was given absolute rights to exercise their freedoms then mutual admiration and comfort level will be replaced by mutual hatred and aggression for each other whenever there is conflict.

Section 66A was without a doubt poorly drafted. Terms like grossly offensive, menacing character, inconvenience, annoyance is what the section was based upon and to top it all the offence was made cognizable which gave the law enforcement officials the right to arrest an individual without any warrant. The political leaders by arresting every second person making a foul comment or post displayed their power. These were the appalling drawbacks which ultimately led to the quashing of this draconian provision. But if there were people who were abusing their power and position there are also people seated at the other end of the table who equal them in abusing fundamental rights. There are incidents of cyber bullying all over the country, India having the highest number of children who are cyberbullied[15] and this section was a weapon to put an end to this regime. Also this same draconian section was put to use by the government when during the Assam violence bulk messages were banned as the messages would further incite violence. During the exodus of North Easterners from Bangalore[16], the Government had to take action under section 66A in order to take control in that situation.

  1. CONCLUSION

In order to appreciate why Supreme Court ruled against section 66A, it is important to get a hang of the reasoning that went behind it. To begin with, both the judges in this case endorsed the view that law in a civilised society curbs the state and not the individual. It is very difficult to understand why section 66A is so wrong nor why is was so right for the court to strike it down.[17] The judges have rightly discussed and referred numerous Indian and foreign judgements to interpret the principle of free speech and expression as the main question came before the court was regarding the same. Should internet be considered as a platform to express ones thoughts and ideas? In effect, Justice Nariman’s claim is that the Internet is a dominant platform for the “marketplace of ideas” and the role of free speech laws is to regulate the efficiency of this market.[18]

The verdict is important for more than one reason, first, it has come like a breath of fresh air at a time when there is a general atmosphere of despair following resent state actions that give the impression of intolerance towards dissent. Second, it instils confidence among citizen that they have the judiciary to safeguard their fundamental rights. Third, the law was too vague to survive the constitutional challenge.[19]

This verdict came as a gift to the society to express their views and thought through internet. Now to talk about the importance of this judgement I would like to discuss why this law enacted by the legislature? Has it come to the statue book to prevent cybercrime or it had some other objective to fulfil. It was said by Kapil Sibal, the former telecom minister that the main reason behind the amendment was for the protection of women. Was the section really meant to protect women?  The wording of the section does not include anything regarding cyber harassment of women. If it was the main purpose for the amendment then the provision should explicitly define it.

How uploading of a politically incorrect cartoon amounts to cyber harassment? How does creating an image meme out of perfectly decent public photographs of politicians amount to cyber harassment? How does criticism of a “bandh” amount to cyber harassment? The law says grossly offensive contents which creates a chilling effect on the freedom of speech and expression because something which is offensive to someone might not be offensive to others. But when it comes to sharing through internet, it automatically comes to the mind of the person that the posting of photos could punish him, as a result he restrain himself from doing so.

The main objection of the amendment of the act came from the now ruling party, whereas after taking over the throne, they completely supported the section. It was completely illogical to reverse the position when the party came to power, especially since its 2014 Lok Sabha relied heavily on the IT communication. Randip Singh surjewala said, “BJP leader Arun Jaitley”, now finance minister, “termed the law an ‘online emergency’ while in opposition and justified the same law when in power through an affidavit in Supreme Court by stating that Section 66A was necessary to ‘regulate the use of cyberspace’.”[20] Congress leaders who were the lead persona to amend the law supported the verdict. Congress leader P Chidambaram, whose son Karti still denies misusing Section 66A, joined the long list of Congress leaders to welcome the Supreme Court judgement holding Section 66A of the IT Act as unconstitutional, saying it was poorly drafted and misused.[21]

Now when the Supreme Court has struck down the provision, people will eventually think to express their thoughts and ideas through the internet. But though the section has repealed, Indian penal Code prescribes punishment for defamation, criminal nuisance. As a situation, contentious social media posts will not attract Section 66A any further, but penal provisions relating to defamation, obscenity, mischief, public disorder, etc. remains. The question that comes how this judgement going to help the people? Are they entitled to post through internet whatever they feel like? The answer is no. because IPC contains provision regarding defamation, obscenity, mischief, public disorder, which was one of the question raised in the Supreme Court that why there is need of 66A when there are provisions under IPC?

The reason of repealing the section was mainly the words of the provision. It was written vaguely, arbitrarily and hence it was amounts to the violation of the rights of human conferred by the constitution. So, the cardinal error in section 66A is that several of its key terms are loosely phrased and can be interpreted in number of ways. This is what made it a hopeless document by democratic standards, but just right for dictatorial misuse.[22] Section 66A was a badly drafted piece of legislation which should not have been taken place in any democracy.

[1] Sherya Singhal v. Union of India, W.P. (Crl).No. 167 of 2012.

[2] Information and communication technology (ICT).

[3] “3. A rapid increase in the use of computer and internet has given rise to new forms of crimes like publishing sexually explicit materials in electronic form, video voyeurism and breach of confidentiality and leakage of data by intermediary, e-commerce frauds like personation commonly known as Phishing, identity theft and offensive messages through communication services.  So, penal provisions are required to be included in the Information Technology Act, the Indian Penal code, the Indian Evidence Act and the code of Criminal Procedure to prevent such crimes.” (Retrieve From the judgement of Sherya Singhal v. Union of India para 3 page 5.)

[4] Jayant Sriram, SC likely to pronounce verdict on validity of Section 66A today, The Hindu, March 24 2015.

[5] Suhrith Parthasarathy, The judgment that silenced Section 66A, The Hindu, March 26, 2015.

[6] Aparna Viswanathan, An unreasonable restriction, The Hindu, February 13, 2013.

[7]Judgement Sherya Singhal v. Union of India, page 28 para 27.

[8]Retrieved from <http://internetdemocracy.in/2012/12/post-guidelines-india-8-reasons-why-the-new-guidelines-are-not-enough/ > Shehla Shora, Post-Guidelines India: 8 reasons why the new Section 66A guidelines are not enough, 20 decmember 2012 (last visited on 14th April, 2015 at 12:45).

[9] (1952) S.C.R. 654, SC, at page 662-663

[10] Dr. Ram Manohar Lohia v. Supdt. Central Prison, Fatehgarh, (1955) AIR All 377.

[11] Shreya Singhal v. Union of India (see ibid)

[12] 2006 (8) SCC 433, at para 31.

[13] 2014 (4) SCC 257.

[14]Retrieved from < http://www.livelaw.in/for-66a-the-192-operated-as-ak-56/&gt; Prof. Madabhushi Sridhar, For 66A, the 19(2) operated as AK 56!!!, March 25, 2015 (last visited 13th April 2015, at 21:33).

[15]Retrievedfrom<<http://indiatoday.intoday.in/story/indian-kids-worst-victims-of-cyberbullying study/1/169603.html,>> India Today Online , New Delhi, January 19, 2012. (Last visited 13th April 2015, at 20:15).

[16] Retrieved from <http://articles.economictimes.indiatimes.com/2012-08-19/news/33262528_1_ne-students-rumours-attacks&gt;, Assam violence: Has Indian nationhood failed to embrace the North Eastern community? Aug 19, 2012, Pradip Phanjoubam. (last visited 13th April 2015, at 20:35)

[17] See ibid

[18] Rajgopal Saikumar, Principles, anxieties and concern in the Section 66A judgment, The Hindu, April 6, 2015.

[19] Satya Prakash, Relief though citizens are free to discuss issues, IPc applicable in case of incitement, Hindustan Times, March 25, 2015.

[20] Section 66A: With defence and criticism, Congress speaks in many voices, the Indian Express, 14th April, 2015.

[21] Retrieved from< http://www.firstpost.com/india/live-why-didnt-they-repeal-section-66a-of-it-act-kapil-sibal-hits-out-at-nda-2169977.html > Ayeshea Perera, Why didn’t they repeal Section 66A of IT Act? Kapil Sibal hits out at NDA, 24th March 2015,( last visited on 15th April 2015 at 20:43)

[22] Dipankar Gupta, dictators would love 66A, Times of India, March 28, 2015.

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