All You Need To Know About The 66(A) Judgement

The Supreme Court’s judgement underscore the need to take legislative business more seriously. Many of the provisions that have been struck down were  promulgated without a debate they deserve, despite their adverse implications for fundamental freedoms.

Editor’s Note: The author of this piece was part of the team that represented a consortium of internet intermediaries, namely the Internet and Mobile Association of India in W.P.(C) 758/2014 which challenged Section 79(3)(b) and Intermediary Rules. Thanks, Sai!

In a 122-page judgment pronounced on March 24, 2015 in a slew of Writ Petitions challenging the constitutionality of various provisions of the Information Technology Act, 2000, the Supreme Court of India has struck down Section 66A of the Act, read down (watered down) Section 79(3)(b) of the Act and Rule 3 of the Information Technology (Intermediary Guidelines) Rules, 2011, all of which were introduced through the Information Technology (Amendment) Act, 2008. However, the constitutionality of Section 69A and the Website Blocking Rules has been largely upheld.

Section 66A

Section 66A of the Act has been frequently in the news in the last few years for being invoked by people purportedly “offended” by comments on social media. This provision, which was promulgated by the erstwhile UPA regime without much of a contest or dissent from the BJP-led Opposition, is a textbook instance of a vague provision which lends and has lent itself to much abuse. The list of instances in which the provision has been used to stifle free speech and criticism is captured in this well-researched piece. In fact, a few days ago Section 66A was invoked against a young student for his comment on social media on Samajwadi Party (SP) leader and Uttar Pradesh Minister Azam Khan.

In its prefatory remarks in the judgment, the Apex Court has rightly observed that “when it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme”. Importantly, the Court has struck a distinction between discussion, advocacy, and incitement and has held that restrictions on free speech and expression may be imposed only under Article 19(2) of the Constitution and only in instances where incitement is manifest. It has observed that Section 66A does not recognize this critical distinction and penalizes all kinds of information, which also has an adverse bearing on the right of readers to receive information.

On the question of whether a different standard/yardstick must be applied to the internet by virtue of the peculiarity of the medium, in particular its reach, the Court has answered in the affirmative. However, it has opined that notwithstanding the validity of such a differential treatment, any provision which curbs free speech on the internet must pass constitutional muster, which Section 66A fails to.  The Court has categorically observed that there is sufficient basis for creation of offences applicable solely to free speech on the internet. In the author’s opinion, given that the Court was convinced of Section 66A’s unconstitutionality on the anvils of Article 19(2), it could have refrained from commenting on the legitimacy of differential treatment for the internet for the purposes of scrutiny under Article 14.

The next litmus test that the Court has applied in examining the constitutionality of Section 66A is whether the acts proscribed by the provision truly result in disturbing public order, or do they merely affect an individual leaving the tranquility of society undisturbed. The Court clearly holds that Section 66A is oblivious to such a nuance since it penalizes even one-to-one communication between individuals which has no nexus to public order. Simply put, according to the Court, mere annoyance to a certain individual does not satisfy the requirement of maintenance of public order, which justification is necessary to support the existence of Section 66A.

The other frequently heard charge against Section 66A is its inherent vagueness, the absence of definitions for terms used in it and the conspicuous lack of mens rea (the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused) as an ingredient. The Court has echoed the very same apprehensions since unlike the Indian Penal Code wherein the contours of offences relating to restrictions on free speech are narrow and clear, Section 66A uses completely open ended and undefined phraseology.

The absence of clear boundaries and definitions renders the provision capable of abuse, particularly when the acts forbidden by it are to be judged through the subjective lens of the recipient of a communication. In other words, what is grossly offensive to one, may seem perfectly normal or justified to another and yet an offence would be made out under (the erstwhile) Section 66A if the recipient claims to be offended or annoyed. Therefore, the provision does not lend itself to the application of objective standards since it is dependent entirely on the recipient’s sensibilities.

In light of the above, the Court rightly observed that the chilling effect of Section 66A on free speech is self-evident, and struck it down for being unconstitutional.

Section 69A and Website Blocking Rules

For a better understanding of Section 69A and Website Blocking Rules, readers may read an earlier post of mine on CRI written in the backdrop of the erstwhile UPA Government’s misuse of Sections 69A and 79(3)(b) during the 2012 Assam riots, under the pretext of disabling “inflammatory and hateful content targeting North-eastern community”, to clamp down on Twitter handles and portals (including Swarajya’s predecessor Centre Right India) critical of the UPA’s handling of the riots. In simple terms, Section 69A empowers the Central Government to block access to websites. Blocking of a site is different from taking down/removing the content altogether. Importantly, Section 69A application is restricted to permissible limitations on free speech identified in Article 19(2).

The provision and the rules thereunder were challenged primarily for not affording the creator or uploader of content an opportunity to be heard before access to a site containing the content is blocked. It was also argued on behalf of the petitioners that the procedural safeguards provided for in Sections 95 and 96 of the Code of Criminal Procedure (CrPC), both of which deal with prohibition of books/newspapers, were absent under the website blocking mechanism.

In response to this grievance of the petitioners, the Court has interpreted the Blocking Rules to provide for a hearing of the originator of the content before a blocking order is passed. However it went on to hold that merely because certain additional safeguards provided for in the CrPC were absent in Section 69A, the latter could not be declared constitutionally infirm. This is surprising because the Court has not proffered reasons for not including such additional safeguards in the Website Blocking mechanism.

Perhaps in light of the vague, imprecise wording of Section 66A, the language and scope of Section 69A seemed relatively better fleshed out to the Court, which explains why the provision has been left largely untouched. That said, it is this author’s opinion that there is still room for improvement in Section 69A.

Section 79(3)(b) and the Intermediary Rules

Section 79(3)(b) and the Intermediary Rules provide for what is known as the “Take Down” mechanism which, unlike 69A and the Blocking Rules, provides for removal (and not just blocking) of content. The primary object of Section 79 of the Act, as it originally read in the year 2000, was to provide limited immunity from liability to any “network service provider” (defined as an “intermediary” in the IT Act as it stood in 2000) for any offence arising under the Act, owing to any third party information or data made available by the provider.

This immunity was contingent on the provider establishing either his ignorance of the commission of the offence, or baring to scrutiny the steps he had taken to prevent its commission. However, the lacunae in the mechanism were exposed in 2004, when the Chief Executive Officer of Baazee.com, Mr. Avnish Bajaj, was arrested for the offer of sale of an obscene video clip (the DPS MMS clip) made on the portal by a user (a student of IIT Kharagpur).

To legitimately shield intermediaries such as e-commerce portals and cyber cafes from the consequences of User Generated Content (UGC), an amendment of the definition of “intermediary” was effected and the definition was enlarged in the Information Technology (Amendment) Act, 2008. The definition, as it stands, is extracted below:

“Intermediary” with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes.

The most contentious aspect of the amendment was the inclusion of sub-section (3)(b) to Section 79 which states that “upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource, controlled by the intermediary is being used to commit the unlawful act”, if “the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner”, the immunity under Section 79(1) would cease to be available to the intermediary.

This obligation to remove/disable content is known as the “Take Down” requirement, and the notice to remove content is called the “Take Down Notice”. The obligation is reiterated in Rule 3 of the Intermediary Rules. Importantly, the content prohibited under Rule 3 is almost identical to Section 66A. Therefore, going by the Court’s take on Section 66A, Rule 3 is also constitutionally infirm.

The challenge to Section 79(3)(b) and the Intermediary Rules was primarily mounted on grounds that the provision requires intermediaries to don the mantles of adjudicators of facts and law that relate to the possible commission of an unlawful act, a role they are clearly ill-equipped to perform in most instances, especially when the content relates to political speech or alleged defamation or obscenity. These are areas and issues which even Courts have grappled with. Therefore, to expect private parties such as intermediaries to perform adjudicatory functions was clearly unreasonable. Critically, the scope of restrictions on content under the take down mechanism went well beyond the permissible restrictions on free speech under Article 19(2).

Both these contentions were well received by the Court, which has read down the provision by holding that a take down notice cannot be effected unless the complainant secures a court order to support his allegation. Further, it has held that the scope of restrictions under the mechanism is restricted to the specific categories identified under Article 19(2). Effectively, this means intermediaries can operate without the fear of losing their immunity for not taking down content based on a notice in the absence of a court order.

Conclusion

Although the interpretation and implementation of the judgment remains to be seen, the judgment itself is undeniably a welcome one and will go a long way in furthering the cause of democratization of the internet, which has evolved from a tool of commerce and communication to the medium of choice for expression of social, cultural and political views outside of the mainstream media. Further, while it is true that the above-discussed provisions of the IT Act were introduced by the Congress-led UPA regime, these provisions seem to have been promulgated without a debate they deserve, despite their adverse implications for fundamental freedoms.

This points to a dire need to take the business of legislation seriously, regardless of which party is in power since a mechanism that is capable of being employed by one dispensation to further its interests, is equally capable of being invoked by another. In the interest of objectivity, it would help to fashion mechanisms which are based on justiciable standards instead of fondly hoping that conscience shall take precedence over political expediency.