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An estimated 18-minute read
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INTRODUCTION:
In what is being termed as one of the most landmark judgments upholding the right to free speech in recent times, the Supreme Court in Shreya Singhal and Ors. vs Union of India, struck down Section 66A of the Information & Technology Act, 2000. The ruling which is being lauded by the common man and legal luminaries alike, found the Cyber law provision to be open-ended, vague and unconstitutional owing to the restriction it caused to the Indian citizens' right to free speech.

FLAWS IN S.66A:
The Bench primarily objected to the vague and ambiguous phrasing of S.66A that left it open to arbitrary application and misuse, in addition to the fact that S.66A was a cognizable offence, i.e. those who posted content that can be considered ‘offensive’ or ‘menacing’ could be arrested by the Police without a warrant, making this the most crucial drawback to this vaguely drafted provision. What essentially made this provision prone to inappropriate application was leaving to the discretion of police authorities, the interpretation of an overly-broad law. Therefore, the net effect of this Supreme Court ruling is the abolition of immediate arrests by the Police on vague and unclear grounds.

EFFECT OF THIS JUDGMENT ON OTHER PROVISIONS OF THE IT ACT:
While it is S.66A that has garnered maximum attention, the judgment also considered the validity of other provisions of the IT Act namely Section 69A and 79 along with the Rules made thereunder. Section 69A and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 authorise the Central Government to block or order an intermediary (such as Facebook, YouTube or any internet/ telecom service provider) to block access by the public of any content generated, transmitted, stored, etc. in any computer resource, if it is satisfied that such content is likely to create communal disturbance, social disorder or affect India's defence and sovereignty, etc..

The Supreme Court however did not strike these provisions down but instead upheld the constitutional validity of the Power given to the government under S.69A to block website content in certain circumstances. Further, S.79 has been ‘read down’ to mean that intermediaries shall be required to block content only in accordance with a Court Order or a notification issued to this effect by the Government or its agency. While the Supreme Court has undone the need for intermediaries to undertake self-policing and self-determination of the nature of content, it has allowed the government to direct intermediaries to disable information deemed “harmful/inciteful, etc.” on their websites/server space.

The visible paradox here is that both provisions i.e. S.66A and 69A, stipulate vague grounds on which action, albeit different in nature, can be taken against objectionable content. The lack of distinct principles to outline the ambit of S.66A gave the Police no yardstick with which to ascertain the veracity and severity of allegations made regarding content being “annoying/offensive”. If the same logic is extended to 69A, the Court has failed to explain as to how in the absence of any specific test/guidelines, an official of the government can be expected to correctly interpret whether any content is liable to disturb public order, the security and defence of India, etc. Nevertheless, while one provision (namely S.66A) has been deemed unconstitutional owing to its vague phraseology, the other (S.69A), notwithstanding its ambiguity has been retained, thus putting a question mark over the uniformity of the Court’s rationale.

The Court has founded its decision to repeal S.66A essentially on its potential to cause an obstruction to free speech. The dichotomy is that by upholding S.69A, this judgment continues to provide political/Government authorities with an avenue to “restrict free speech” by issuing an order on vague grounds to filter any published content if they do not find the same to be agreeable.

WHY WE NEED A REGULATORY MECHANISM FOR ONLINE MEDIA
That information technology has been recurrently exploited to harass or create public disorder cannot be denied. Anomalies aside, S.66A has proved to be a useful remedy, particularly in situations of sensitive nature concerning religious and communal sentiment; for instance the episode of the exodus of north-east students from Bangalore where the Police Authorities were forced to take recourse to S.66A to avoid spreading of rumours caused by inflammatory SMSes, circulated to incite violence against persons of the north eastern community. Such instances where religious and communal harmony have been disrupted by publishing/transmitting inflammatory content in the form of texts, mails, posts, etc. have to undoubtedly be deemed as “grossly offensive”. Therefore, the reasoning of the Court that S.66A acts beyond the scope of Article 19(2) seems unfounded.

S.66A provided an opportunity to genuine victims of cyber harassment to obtain immediate relief against content that may be insulting or injurious in nature, abrogation of which has now made Police authorities toothless in dealing with the growing menace of cyber bullying. No doubt S.66A could be used arbitrarily, but by doing away with the provision on account of its potential misuse, the Court has also discarded a remedial mechanism available to the common man to counter actual cyber offences.

A multi-racial, multi-cultural country like India, where free speech is susceptible to misuse on sensitive grounds of communal, political and religious bias, is not prepared for such an absolute and unrestrained right. What we need is to be able to exercise the right to speech freely but on practical and workable grounds i.e. within specific boundaries.

HOW PARALLEL SECTIONS HAVE BEEN SUBJECTED TO MISUSE:
The repeal of S.66A does not however result in an unrestricted right to free speech since analogous provisions of the Indian Penal Code (IPC) will continue to apply to social media online viz. Intentionally Insulting Religion Or Religious Beliefs (S. 295A), Promoting Enmity Between Groups On Grounds Of Religion, Race Etc. (S. 153A), Defamation (S. 499), Statements conducing to Public Mischief (S. 505), Insulting The Modesty Of A Woman (S 509), Criminal Intimidation (S 506), Sedition (S124-A), etc.
S.66A required the police authorities to ascertain by themselves, the severity of the material posted and thereafter arrest the person. The biggest downside to its repeal will be for genuine recipients of such emails or messages who now have no provision at their disposal to avail prompt counteractive relief as the procedure for dealing with similar offences under the IPC is a lot more laborious. Complainants will now have to undertake the arduous task of approaching the Court first, without whose order no action can be initiated.

Now the closest alternate provisions to book offences of online media will be Section 499, 124A, 295A and 506, etc. of the IPC. Ironically, these provisions have been criticized for being misused before S.66A was even introduced.

SECTION 124-A Although Section 124(A) (Sedition) should be invoked only if there is a genuine likelihood of public disorder due to violence or incitement to violence, this provision has been regularly subjected to gross misuse by governmental agencies to suppress scathing critics: [Outlook India]

  • Seema and Vijay Azad, a journalist couple from Allahabad, were charged with Sedition and sentenced to life imprisonment along with a fine of Rs 70,000 by a sessions court in Allahabad for writing about corruption and illegal mining in Uttar Pradesh
  • Arundhati Roy: for making a speech at a seminar in New Delhi about Kashmir which was termed ‘anti-India’ 
  • Piyush Sethia, an environmental activist was accused of sedition for disrupting a Republic Day ceremony in Salem in 2010 by attempting to distribute a controversial anti-mining leaflet.
  • Manoj Shinde Editor, Surat Saamna, was charged in August 2006 for using “abusive words” against Narendra Modi in an editorial alleging administrative failure in tackling the Surat flood situation 
  • Gautam Mehta Photographer, Gujarat Samachar charged in June 2008 for articles and photographs alleging links between the Police Commissioner of Ahmedabad and the underworld
  • Aseem Trivedi, a cartoonist was arrested by the Mumbai Police in 2012 on charges of Sedition after he caricatured national emblems and Parliament. The Bombay High Court in its recent judgment observed that there was a need to add safeguards to the Section on Sedition in the Indian Penal Code as it could be easily misused”. The Bench added that the cartoons, though not witty or humorous, were not seditious as they do not incite violence or public disorder. The State could not slap sedition charges on citizens for making fair criticism.’ [The Hindu March 18, 2015]

SECTION 295-A This provision that penalizes statements insulting religious beliefs, has also been randomly invoked time and again [The Telegraph Dec 5, 2012]


In 2012, rationalist Sanal Edamaruku, booked under Section 295A by Catholic organisations, was forced to flee the country for fear being arrested because he proved that a statue of Jesus Christ at a Mumbai church that was declared to be “weeping” was not a ‘miracle’ but actually a result of water leakage due to defective plumbing.
Southern actress Jaimala was charged under Section 295-A for entering the Sabarimala temple, entry to which is prohibited by women
Taslima Nasrin faced charges under this provision for her controversial book Dwikhondito,

SECTION 500:-Even Section 500 that covers defamation, has recently come under the judicial scanner with the Supreme Court intending to examine the constitutional validity of criminal defamation, which has long been in the news for having been blatantly misused by the ‘high and mighty’ to silence disagreeable opinions. The Supreme Court previously had a chance to ascertain the constitutionality of Section 499 and 500 with respect to of Article 19(2) in two cases. The court in both these cases said that the validity of Section 499 and 500 was required to be examined but deferred it for a more opportune case in the future. [The Times of India October 31, 2014]

All of the aforementioned instances depict an unfortunate but clear picture: Every law is prone to misuse. Abrogation of a provision vulnerable to misuse cannot guarantee fair implementation of the due process of law.

The Supreme Court in Namit Sharma vs Union of India (2013)1SCC745) placing reliance upon D.D. Basu’s ‘Shorter Constitution of India’ (Fourteenth Edition, 2009) observed as follows “The Court should examine the provisions of the statute in light of the provisions of the Constitution (e.g. Part III), regardless of how it is actually administered or is capable of being administered. In this regard, the Court may consider certain factors as noticed in D.D. Basu (supra) such as the fact that the possibility of abuse of a statute does not impart to it any element of invalidity.”

The Supreme Court while recently entertaining a set of PILs that challenged the constitutional validity of Sections S.66A, S.69 and S.80 of the IT Act observed that "Instances of abuse of law would be there. Merely because the ingredients of an offence are covered under an existing law, that cannot be a ground for quashing it," A bench of Justices J. Chelameshwar and S.A. Bobde on December 11, 2014 opined that “laws were "prone to abuse" and cited the example of Section 498A of the Indian Penal Code, which was brought in to safeguard the interests of married women but has often led to complaints of misuse "…The Bench added that “The Parliament normally does not make laws unless flooded with complaints. We are saying this on the presumption of constitutionality. It is not that all of us sitting here in courts, including the highest court, cannot make mistakes," "Because technology changes so fast, a legislature cannot visualise what are the safeguards." [The Telegraph December 12, 2011]

A similar view was taken by the Law Commission of India in its 243rd Report 2012 on the extensive misuse of Section 498-A of the IPC wherein it was observed as under: [243rd Report of the Law Commission of India 2012]

‘That Section 498-A has been misused in many instances admits of no doubt. S.498A has a lofty social purpose and it should remain on the Statute book to intervene whenever the occasion arises. Its object and purpose cannot be stultified by overemphasizing its potentiality for abuse or misuse. Misuse by itself cannot be a ground to repeal it or to take away its teeth wholesale. The re-evaluation of Section 498-A merely on the ground of abuse is not warranted…......While the Commission is appreciative of the need to discourage unjustified and frivolous complaints and the scourge of over-implication, it is not inclined to take a view that dilutes the efficacy of s.498A to the extent of defeating its purpose especially having regard to the fact that atrocities against women are on the increase. A balanced and holistic view has to be taken on weighing the pros and cons. There is no doubt a need to address the misuse situations and arrive at a rational solution – legislative or otherwise, while maintaining the efficacy of law.”

Consequently, instead of repealing this frequently misused provision, the Supreme Court in the judgment of Arnesh Kumar (Supra), issued directions to be followed by the police authorities and Magistrates to prevent casual arrests of the accused under 498-A.

WHY THE COURT SHOULD HAVE ESTABLISHED REGULATORY GUIDELINES
The main criticism against 66A was that its terminology being overly ambiguous and broad made it susceptible to misuse. This was a malady that the Court deemed fit to remediate by resorting to the “lessor adopted” approach of abolishing the provision altogether.

Instead of removing a protective provision in its entirety, an endeavor ought to have been made by the Judiciary to give proper meaning and scope to the ambiguous terms within it, so as to bring them in the purview of Article 19 (2). The Bench could have considered the possibility of establishing specific tests to determine what would constitute an offence under S.66A along with prescribing thresholds that minimise the possibility of arbitrary application of such provision while also allowing for the effective operation of reasonable restrictions given by the Constitution.

As was pointed out by the Additional Solicitor General in this case while justifying the necessity to retain such a provision “If the medicine is bitter then we can have sugar after it instead of throwing the medicine. People have to take the medicine as it is for their benefit". [Times of India February 05, 2015]

There have been significant instances in the recent past where the Judiciary has taken upon itself the duty to issue guidelines for effective interpretation of the law if the same is found to be vague or prone to abuse:

  • The most recent example being that of Section 498-A of the IPC. In light of the extensive misuse of this anti-dowry provision, the Supreme Court in Arnesh Kumar vs. State of Bihar and Ors. (2014)8SCC273 specifically defined principles and carved out parameters to be followed by the police authorities and the Magistrates while making arrests and/or authorizing detention of an accused under Section 498-A thereby providing respite from the mechanical approach of the authorities in authorising arrests and detentions on the basis of mere allegations of commission of an offence.

  • Electronic records being more inclined to being tampered and altered, the Supreme Court in Anvar P.V.v. P. K. Basheer (2014) 10 SCC 473) redefined the evidentiary admissibility of electronic evidence under Section 65B of the Indian Evidence Act, 1872 by enumerating comprehensive safeguards to ensure their source and authenticity.  

  • Another significant instance was where the Supreme Court defined the factors to be considered while entertaining PILs. Owing to the widespread misuse of PIL for vested interests in the guise of public interests and in the absence of any fixed principles to prevent the same, the Supreme Court compiled a set of Guidelines that provide whether a petition actually falls within the bona fide categories for which the crucial remedy of a PIL can be availed of.

CREATING A BALANCE BETWEEN GRANTING A RIGHT AND PREVENTING ITS MISUSE:

The incident that triggered the Petitioner to file this PIL was the “Palghar case’ where 2 college students were arrested after they uploaded a post on a social networking site questioning the shutdown in Mumbai following a politician’s death. Such gross abuse of the law is inevitable if analysis and interpretation of what constitutes “annoying” or “menacing” “insulting” is left to the discretion of the Police.

The Judiciary struck down the Section without appreciating that the flaw actually lies in the laws pertaining to arrest in India which continues to remain ambiguous. It was the discretion of the Police that was misused in most incidents, who due to lack of guiding principles, failed to distinguish between harmless free speech and a genuinely offensive statement. The safeguard against arbitrary and unwarranted arrests lies in sensitizing the Police on the procedure to be observed while exercising their powers to arrest in cases of this nature.

The Bench seems to have completely ignored the existence of guidelines already issued to the Police by the Central Government on the use of Sec 66-A after the infamous “Shaheen Dada case” to curtail the repetition of such instances. As per these guidelines, police officers can effect an arrest under this Section only if prior permission to do so is obtained from an officer of the rank of Inspector General of Police in metropolitan areas and Deputy Police Commissioner or Superintendent of Police, in district areas. Despite the issuance of such advisory guidelines to channelize the process of dealing with complaints under S.66A through a higher official to appropriately determine if ingredients of the offence have been made out, the Court found the Section to be vulnerable to arbitrary application.

In the event that such Guidelines were found to be insufficient, the Court could have conceptualized a detailed procedure of arrest by the Police to ensure effective application of the law. When the law lacks direction, the same should be channelized by the Judiciary based on the settled principles of due process, justice and reason read with the facts of the case, as was done by the Court for S. 498A of the IPC in the matter of Arnesh Kumar (supra). When provisions, being vague or subjective in nature cannot be acted upon, it is incumbent upon the Judiciary to lay down tests to determine whether or not the ingredients of an offence have indeed been made out along with the complexity of the offense alleged and then adjudge the matter against the standards set by the Constitution.

Likewise, the learned Additional Solicitor General in the Shreya Singhal case asked the Court to ‘read into’ S.66A each of the subject matters contained in Article 19(2) in order to save the constitutionality of the provision and even proposed an extensive list of principles that could be read into S.66A to make it workable. The Court however thought fit to rescind the entire provision without providing an alternate provision in its place, which could be applicable to online offences without the fear of it being ‘abused’. A Statute cannot be expected to anticipate every eventuality or foresee as to whether or not a provision can be subjected to misuse and arbitrary discretion of Executive authorities. But what the Court can do is to establish a framework to harmoniously permit free speech while ensuring it is not abused, also bearing in mind that misuse of discretion by executive authorities is not always avoidable.

The Judiciary in this case, neglected the fact that S.66A was brought into effect because the social media culture necessitated it since right to free speech is commonly used to undermine the rights and dignity of others. Dismissing the provision for being vague has also nullified one’s safety in the online forum. What the Judiciary should have ensured is to enlist specific directions in configuration with the moralities of the present society to prevent the misuse of electronic communications to harm the reputations and rights of others on a public platform. Terms like ‘annoyance’, ‘offensive’, ‘menacing’, being subjective by nature, cannot be bound by a precise definition but explanatory guidelines by the Judiciary from time to time would facilitate in establishing the degree of ‘annoyance’, ‘offensive’, ‘menacing’ that would deem the content to be objectionable for the purpose of this Section.

It would be have been more desirable to establish elaborate thresholds for the Court to be able to determine the parameters within which to review the liberty to exercise one’s right to free speech; for instance, its intent and context, severity or range of its impact, its probability of creating public unrest, insult, etc. The Judiciary being an independent body, free of political or commercial influences can ideally prescribe an extensive mechanism that effectively balances the right to free speech while also safeguarding the right to protect one’s privacy and reputation by appropriately countering harmful content online.

The intent and object behind the S.66A and the constant need for monitoring the harmful effects of unrestricted free speech should have been borne in mind by the Bench while also ensuring that exaggerated and frivolous allegations with vested interests are restrained. Considering the promptness and range with which information goes viral in today’s times, the Court should have taken this case as an opportunity to answer the question as to which categories and forms of freedom of expression should be reasonably restricted.

CONCLUSION:

Every law is vulnerable to exploitation. Mere prospect of abuse should not have been the ground for removing an essential provision in totality because almost every other legal provision will then be liable to be removed by the same logic. Seeing as the right to free speech in consonance with right to protect one’s dignity and reputation is a basic right, this case might have been an appropriate opportunity for the Court to propose a workable distinction between protecting rights and restricting them.

Authors: Mr. Partha Pati – (Partner) and Ms. Sanjana Sinharoy (Associate) of ABHAY NEVAGI AND ASSOCIATES

Tagged in: IT Act
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