An Obvious Judgement

A comprehensive account of the Supreme Court’s decision to strike down the draconian section 66 A

Section 66A of the Information Technology Act was so audacious a provision that one would have been surprised if the Supreme Court came to any other conclusion than to strike it down. Much like many UPA decisions that were rushed through only to be struck down/ reversed later, Section 66A was introduced with little regard for Constitutional checks and balances. No provision in any other law ventured to impose more restrictions on what an Indian citizen could say than what the Constitution itself provided for.

In fact the Constitution as it was originally framed contained fewer restrictions on the freedom of speech and expression than what exist in it today. The addition of “friendly relations with foreign states”, “incitement to offence” and “public order” as grounds was Nehru’s contribution. The Times wrote then that being deeply concerned about criticism of his economic and foreign policies Nehru wanted “to teach it (the press) manners, (and)… proposed an amendment to India’s constitution that would impose severe restrictions on freedom of speech and expression.”

After the amendment, Article 19(2) of the Constitution which contains these restrictions included 8 grounds. These alone could be used to make a law curbing the freedom of speech and expression. They are- “the security of the state, friendly relation with foreign states, public order, decency or morality, ..contempt of court, defamation or incitement to an offence.” The Cinematograph Act prohibits Censor Board from certifying a film if it is against the same grounds as in Article 19(2).

Other laws controlling the freedom of speech like like the Dramatic Performances Act and the erstwhile Press (Objectionable Matter Act) also did not travel beyond these 8 grounds. In striking down Section 66A the Supreme Court has reiterated the significance of these 8 grounds as not only restrictions on the Individual liberty to speak and express but also on the State’s power to control this liberty. Unlike in our Constitution, the American constitution’s First Amendment guaranteed freedom of speech and press without any  specific restrictions. Inevitably American Courts had to evolve the law on what could be sufficient basis to restrict this freedom. In fact some of the grounds held to be reasonable for curtailing free speech by US courts go beyond the 8 grounds contained in Article 19(2), making our Constitution a carrier of a more liberal right to free speech. The Supreme Court took note of this-

“In the U.S., if there is a compelling necessity to achieve an important governmental or societal goal, a law abridging freedom of speech may pass muster. But in India, such law cannot pass muster if it is in the interest of the general public. Such law has to be covered by one of the eight subject matters set out under Article 19(2). If it does not, and is outside the pale of 19(2), Indian courts will strike down such law.”

Yet our parliament thought it fit to enact Section 66A which sought to curb free speech on grounds that are not only outside the four corners of Article 19(2) but are actually trivial when compared to the 8 grounds in it. Among others Section 66A includes “causing annoyance or inconvenience” by sending email as a criminal offence!

Also, except for defamation none of the other 7 grounds in Article 19(2) are concerned with an Individual or private entity being offended or harmed by free speech. Whereas Section 66A prohibits electronic communications that could be aimed at an individual. So on these counts the Supreme Court held that the grounds considered to be offensive under Section 66A travel far beyond the scope of reasonable restrictions on free speech.

This was just one vice the provision suffered from. It must be noted that Section 66A essentially criminalised certain acts. This is important because all grounds that constitute restrictions on free speech in Article 19(2) have been independently treated as criminal offences in the Indian Penal Code, Contempt of Courts Act etc for decades. You will be booked under the IPC for defamation or disrupting public order irrespective of whether you do it manually or through electronic means. But Section 66A was criminalising acts that are not criminal when done without electronic means. Why should annoying, menacing, insulting somebody even by falsehood suddenly become criminal offences only because they are being done electronically? After all the IT Act separately criminalises many offences that are specific to IT like hacking, online pornography etc.

The fact that Section 66A is a criminal provision was also important for the Supreme Court because a criminal provision has to be certain in what it criminalizes. A law that seeks to put a citizen in prison for three years cannot be so vague as to call “persistently…causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will” an offence without defining any of these terms. As the Court rightly held:

“the expression persistently is completely imprecise – suppose a message is sent thrice, can it be said that it was sent persistently? Does a message have to be sent (say) at least eight times, before it can be said that such message is persistently sent? There is no demarcating line conveyed by any of these expressions – and that is what renders the Section unconstitutionally vague.”

The clearest indicator that no homework was done before introducing Section 66A by UPA is that the provision is a near replica of the much maligned Section 127 of the UK Communications Act of 2003. The Supreme Court only had to draw upon the British experience with this provision to conclude how uncertain and potentially dangerous such a law was for an innocent citizen. Due in a week to travel to see his girlfriend and noting the local airport was closed, one Paul Chamber tweeted “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!” A UK Magistrate and the Crown Court in appeal convicted him under Section 127 on the ground that the tweet was “menacing”.

Mr. Chamber had to fight all the way upto the Queen’s Bench to get out of jail. Left to continue, Section 66A would have probably led to far more ridiculous cases than this. After all, under no other law would a  minor have been arrested only for saying what he thought was right.

Apart from striking down Section 66A, the Supreme Court has also read down Section 79 holding that the obligation of an Intermediary to take down web content would arise only if he comes to know of a Court order to that effect. Where I felt the Supreme Court could have been bolder was in its dealing with the rules framed under Section 69-A that enable an officer designated by the Central Government to direct any government agency or intermediary to block online content.

While Section 69A and its rules provide for blocking only on grounds contained in Article 19(2) and contain several levels of scrutiny before the decision to block is taken, some objections placed before Court including the absence of a mandatory requirement to hear the ‘originator’ of such information before blocking should have been considered more seriously. The Court dealt with these objections very cursorily, and upheld the provisions.

The Supreme Court has made it clear that the internet is not only a medium to express but also a source of information and a ‘market place of ideas’.  The right to express oneself freely, includes the right to be able to participate in knowledge sharing and exchange of ideas. While the judgment itself does not lay down any novel or path-breaking proposition of law, it certainly reminds us that under our Constitution there is always hope for freedom and liberty.