SUPREME COURT ON 66A, A LEAP IN THE RIGHT DIRECTION
Swapna Jha
Netizens cheer as the Supreme Court once again rescues the freedom of expression from the clutches of the draconian Section 66A of the Information Technology Act (IT Act). The freedom of speech and expression is enshrined in the Constitution as a fundamental right and is the touchstone of our democratic system. Over the years it has been established judicially that no arbitrary, vague or blanket ban/restrictions can be imposed on this right.
Both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which have been ratified by India, state that individuals have a right to freedom of expression. It encompasses the freedom to seek, receive and impart information either orally, in writing or in print or through any other media subject to certain restrictions as provided in law.
With the adoption of the Model Law on e-commerce by the United Nations Commission on International Trade Law in 1996, the General Assembly of United Nations recommended all member states to give favourable considerations to the provisions of the said Model Law regarding recognition of electronic records etc. India enacted the Information Technology Act 2000 with effect from October 17, 2000 with the object of providing legal recognition to "electronic commerce". This e-commerce facilitated electronic filing of documents with the government agencies. The IT Act also allowed the amendment of certain other Acts for the purpose of achieving the objects of the new legislation.
While the need for an amendment to this Act was in consideration, the Mumbai terrorist attack of November 2008 triggered a sense of urgency for reigning in cyber crimes. This resulted in the slapdash Amendment Act of 2008. This Amendment Act got the Presidential assent on February 5, 2009 and was made effective from October 27, 2009. It was passed in a hurry to put a stop to misuse of technology resulting in a threat to national security. The loosely worded provisions of the Amendment Act granted arbitrary and sweeping powers to the enforcement agencies and was thus being grossly misused to curb citizens' fundamental rights to the freedom of speech and expression and personal liberty.
This was evidenced by a spurt in cases of heavy-handed police action for opinions expressed on social media networks. This arbitrary law was used to justify the arrest of Ms Shaheen Dadha, a young girl who was arrested for questioning the shutdown of the city after the late Shiv Sena chief Bal Thackeray's death. The post was `liked' and shared by Dadha's friend Ms Renu, who was also arrested by Thane rural police in Maharashtra.
Another instance of the misuse of this law is shown in the case of businessman Ravi Srinivasan, who was arrested by Puducherry police in October 2012 for having tweeted against Union Finance Minister Sri P. Chidambaram's son Sri Karti Chidambaram. A Kolkata professor, Sri Ambikesh Mahapatra, was also arrested in April 2012 for posting West Bengal Chief Minister Ms Mamata-Banerjee's cartoons on social networking sites. Sri Nandakumar Venkataraman, then CEO-designate of Ecole Mondiale International School, Chennai, was arrested in 2008 by the Thane Cyber Crime Cell, Maharashtra for hosting an allegedly libelous blog about a company's board of governors and many more. These are just a few examples; many more have been arrested unjustly due to the misuse of the amendment to the IT Act.
Against this background, Common Cause and Another filed a writ petition in the Supreme Court on January 9, 2013, challenging the constitutional validity of sections 66A, 69A and 80 of the Information Technology Act, 2000 (as amended in 2008) among other provisions on the grounds of being violative of Art 14 and 19 of the constitution of India. This petition was disposed of by the judgment delivered by J. Chelameswar and J. Nariman on March 24, 2015. The judgment has well interpreted the fundamental rights and articulated a fiduciary notion of constitutional democracy. It has to some extent, addressed the perennial anxiety of our democracy regarding freedom of speech and expression, especially on the electronic media. The judicial precedence in this regard has tried to reign in the excesses of the legislature and set a pattern where the elected "representatives of the people" will have to bear in mind that the judges have the final say on the limits of amendatory power.
Section 66(A) reads:
"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 makes 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 two three years and with fine.
Explanation: For the purposes of this section, terms "Electronic mail" and "Electronic Mail Message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message."
In the writ, the petitioners had contended that Article 14 was infringed. Section 66(A) posited an offence whose ingredients were vague in nature, arbitrary, unreasonable and would thus result in the inconsistent and discriminatory application of the criminal law. Further, the petitioners argued that since there was no intelligible differentia between the medium of print, broadcast, and real live speech as opposed to speech on the internet, new categories of criminal offences could not be made on this ground.
The Court, however did not accept this argument and held "... when we come to discrimination under Article 14, we are unable to agree with counsel for the petitioners that there is no intelligible differentia between the medium of print, broadcast and real live speech as opposed to speech on the internet. The intelligible differentia is clear the internet gives any individual a platform which requires very little or no payment through which to air his views................... We make it clear that there is an intelligible differentia between speech on the internet and other mediums of communication for which separate offences can certainly be created by legislation. We find, therefore, that the challenge on the ground of Article 14 must fail."
The judgment, however, is a landmark one in the interpretation of "reasonable" restrictions which can be imposed on the grounds as specified in Article 19(2) on freedom of speech and expression.
Section 66A of the Act classifies the freedom of speech and expression into discussion, advocacy and incitement. It has been clarified that the restriction should come into effect only when the discussion or advocacy reaches a level of incitement. The court has held that "Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in." Similarly, citing from an earlier judgment the Court said "Freedom of speech can be restricted only in the interests of the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence."
The Court also elucidated the meaning of "in the interests of" holding that "the limitation imposed in the interests of public order to be a reasonable restriction, should be one which has a proximateconnection or nexus with public order, but not one far-fetched, hypothetical or problematical or too remote in the chain of its relation with the public order." Similarly, citing from an earlier judgment the Court said "The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public."
Government counsel argued that the standard of reasonable restriction be relaxed; owing to the fact that internet was a different medium of speech. In support of the argument, it was stated that:
"(i) the reach of print media is restricted to one state or at the most one country while internet has no boundaries and its reach is global; (ii) the recipient of the free speech and expression used in a print media can only be literate persons while internet can be accessed by literate and illiterate both since one click is needed to download an objectionable post or a video; (iii) In case of televisions serials [except live shows] and movies, there is a permitted precensorship' which ensures right of viewers not to receive any information which is dangerous to or not in conformity with the social interest. While in the case of an internet, no such pre-censorship is possible and each individual is publisher, printer, producer, director and broadcaster of the content without any statutory regulation; (iv) In case of an internet, morphing of images, change of voices and many other technologically advance methods to create serious potential social disorder can be applied. (v) By the medium of internet, rumors having a serious potential of creating a serious social disorder can be spread to trillions of people without any check which is not possible in case of other mediums. (vi) In case of an internet, it is very easy to invade upon the privacy of an unwilling individual and thereby violating his right under Article 21 of the Constitution of India. (vii) It is easily 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 by a mere click of a button without any geographical limitations and almost in all cases while ensuring anonymity of the offender. (viii) In case of an internet a person abusing the internet, can commit an offence at any place at the time of his choice and maintaining his anonymity in almost all cases. (ix) In case of an internet mostly its abuse takes place under the garb of anonymity which can be unveiled only after thorough investigation.(x) As opposed to institutionalized approach governed by industry specific ethical norms of self conduct the use of internet is solely based upon individualistic approach of each individual without any check, balance or regulatory ethical norms for exercising freedom of speech and expression under Article 19[ 1] [a]. (xi) In the present internet age infrastructural and logistical constrains have disappeared as any individual using even a smart mobile phone or a portable computer device can create and publish abusive material on its own, without seeking help of anyone else and make it available to trillions of people by just one click." (Sic)
The Court after considering these arguments and upholding the passage of the law as based on an intelligible criteria made the following observation:
" ..... But we do not find anything in the features outlined by the learned Additional Solicitor General to relax the Court's scrutiny of the curbing of the content of free speech over the internet. While it may be possible to narrowly draw a Section creating a new offence, such as Section 69A for instance, relatable only to speech over the internet, yet the validity of such a law will have to be tested on the touchstone of the tests already indicated above."
The seriatim response of the hon'ble court on the specific grounds as mentioned in Article 19(2) is as follows:
Public Order:
The Court opined that the Section under challenge did not differentiate between mass dissemination and dissemination to one person. It did not require these messages to have a clear tendency to disrupt public order. As the nexus between the message and action that may be taken based on the message was conspicuously absent, it noted:"... there is no ingredient in this offence of inciting anybody to do anything which a reasonable man would then say would have the tendency of being an immediate threat to public safety or tranquility. On all these counts, it is clear that the Section has no proximate relationship to public order whatsoever. The example of a guest at a hotel `annoying' girls is telling this Court has held that mere `annoyance' need not cause disturbance of public order. Under Section 66A, the offence is complete by sending a message for the purpose of causing annoyance, either `persistently' or otherwise without in any manner impacting public order".
The Court quoting from several previous judgments observed, "The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a "spark in a powder keg"....... "..that an article, in order to be banned must have a tendency to excite persons to acts of violence ..."
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.
Defamation:
It will be noticed that for something to be defamatory, injury to reputation is a basic ingredient. Section 66A does not concern itself with injury to reputation. Something may be grossly offensive and may annoy or be inconvenient to somebody without at all affecting his reputation. It is clear therefore that the Section is not aimed at defamatory statements at all.
Incitement to an offence:
Equally, Section 66A has no proximate connection with incitement to commit an offence. Firstly, the information disseminated over the internet need not be information which "incites" anybody at all. Written words may be sent that may be purely in the realm of "discussion" or "advocacy" of a "particular point of view". Further, the mere causing of annoyance, inconvenience, danger etc., or being grossly offensive or having a menacing character are not offences under the Penal Code at all. They may be ingredients of certain offences under the Penal Code but are not offences in themselves. For these reasons, Section 66A has nothing to do with "incitement to an offence". As Section 66A severely curtails information that may be sent on 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) must, therefore, fall foul of Article 19(1)(a), and not being saved under Article 19(2), is declared as unconstitutional.
Decency or Morality:
On this the Court said "What the learned Additional Solicitor General is asking us to do is not to read down Section 66A he is asking for a wholesale substitution of the provision which is obviously not possible."
"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."
On being requested by the ASG to read into Section 66A each of the subject matters contained in Article 19(2) in order to save the constitutionality of the provision, the Court opined that this was not possible as the Court could not do something, which had not been done by the legislature. "We would be doing complete violence to the language of Section 66A if we were to read into it something that was never intended to be read into it......What the learned Additional Solicitor General is asking us to do is not to read down Section 66A he is asking for a wholesale substitution of the provision which is obviously not possible".
Vagueness:
The petitioners argued that the language used in Section 66A was so vague that accused people would not be notified as to what offense was actually committed. Further, the authorities tasked administering the Section would themselves be unclear as to whether a particular communication falls within the scope of the Section or not.
The observations of the court on the issue of vagueness are far reaching. The court held that "....Thus if the law is open to diverse construction, that construction which accords best with the intention of the legislature and advances the purpose of legislation, is to be preferred. Where however the law admits of no such construction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution as was done in the case of the Goonda Act. This is not application of the doctrine of due process. The invalidity arises from the probability of the misuse of the law to the detriment of the individual. If possible, the Court instead of striking down the law may itself draw the line of demarcation where possible but this effort should be sparingly made and only in the clearest of cases." (at pages 470, 471)
Differentiating between Section 66 & 66A the Section under challenge, the Court observed, "that in all computer related offences that are spoken of by Section 66, mens rea is an ingredient and the expression "dishonestly" and "fraudulently" are defined with some degree of specificity, unlike the expressions used in Section 66A.....The provisions contained in Sections 66B up to Section 67B also provide for various punishments for offences that are clearly made out.....Incidentally, none of the expressions used in Section 66A are defined. Even "criminal intimidation" is not defined and the definition clause of the Act, Section 2 does not say that words and expressions that are defined in the Penal Code will apply to this Act.....There is no demarcating line conveyed by any of these expressions and that is what renders the Section unconstitutionally vague. If judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as "grossly offensive" or "menacing" are so vague that there is no manageable standard by which a person can be said to have committed an offence or not to have committed an offence. ....Ultimately, applying the tests referred to in Chintaman Rao and V.G. Row's case, referred to earlier in the judgment, it is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech animus and upsets the balance between such right and the reasonable restrictions that may be imposed on such right."
In this judgment, Justice Nariman has ensconced the concept of "over breadth" and "chilling effect" an established principle in international jurisprudence. The chilling effect is a means to counter invidious/coercive state efforts that impose an unwarranted deterrent burden on the exercise of right to expression. Thus, when a law is vague or overbroad thereby blurring the line between permitted and proscribed expression/speech, the citizens make a conscious effort to self censor, in order to avoid some perceived or explicit consequence, even when it comes to legal and legitimate conduct. The chilling effect in this case has arisen from ambiguity in law resulting in its erroneous application. The Court held that this uncertainty is bound to cause a chilling effect forcing the speaker to remain silent, thereby infringing free speech. Holding the expressions used in Section 66A as over broad and hence in conflict with the repeated injunctions of the Court to couch restrictions on the freedom of speech in the narrowest possible terms, it said:
"We, therefore, hold that the Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth."
The argument forwarded by the Union of India was that the possibility of abuse of Section 66A by persons administering it should not be a ground for testing an otherwise valid law. It assured the Court that it would be used only when excesses were perpetrated by persons on the rights of others and not to curb free speech.
Dismissing the arguments the Court held that "If Section 66A is otherwise invalid, it cannot be saved by an assurance from the learned Additional Solicitor General that it will be administered in a reasonable manner. 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."
Common Cause had also challenged Section 67B(b) of the Act as being violative of Articles 14 & 19 of the Constitution of India.
This section not only renders creating and transmitting child pornography in any electronic form illegal, but brings "browsing" too within its broad sweep. The punishment for a first offence of publishing, creating, exchanging, downloading or browsing any electronic depiction of children in "obscene or indecent or sexually explicit manner" attracts upto five years in jail and a fine of Rs 10 lakh. India does not presently have any special legislation on how to handle child pornography and this may look like a step in the right direction. However, while browsing the internet, unaware netizens may be directed towards websites which contain child pornography. Even if such websites were opened accidentally, the section kicks in and makes that person liable for imprisonment and fine.
This aspect was not discussed in the judgment and the fear of innocent citizens being victimised under this Section looms at large.
Common Cause had also challenged Section 69A of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 for violating Articles 14 & 19 of the Constitution of India.
Section 69A and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 deals with the powers of the Government to block online information in the interest of sovereignty and integrity, defence, security, friendly relations with foreign States of the country or public order or for preventing incitement to the commission of any cognizable offence relating to above, subject to guidelines and for reasons to be recorded in writing.
The constitutionality of 69A was challenged on the fact that it does not provide any effective remedy of redressal for the legal entities/members of the public whose information, generated, transmitted, received, stored or hosted on any computer resource, is blocked for access by the public or caused to be blocked for access under this section.
Though Section 69A provides power to the state to prevent the public from accessing information, the Court held that the procedure laid down for such blocking orders is within the framework of the Constitution. Holding that the section and rules framed thereunder are not constitutionally infirm in any manner, the Court noted that "It will be noticed that Section 69A unlike Section 66A is a narrowly drawn provision with several safeguards. First and foremost, blocking can only be resorted to where the Central Government is satisfied that it is necessary so to do. Secondly, such necessity is relatable only to some of the subjects set out in Article 19(2). Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution............... It is only when the Committee finds that there is such a necessity that a blocking order is made. It is also clear from an examination of Rule 8 that it is not merely the intermediary who may be heard. If the "person" i.e. the originator is identified he is also to be heard before a blocking order is passed. ..............Merely because certain additional safeguards such as those found in Section 95 and 96 CrPC are not available does not make the Rules constitutionally infirm".
One of the petitioners, Internet and Mobile Association of India, in their petition contended that section 79 (3)(b) of the Act and certain provisions of Rule 3 of the Intermediary Rules violate the citizen's fundamental rights to equality and freedom of expression. While Section 79 (3) (b) requires intermediaries to remove content the moment they receive "actual knowledge", without any hearing, the rules cast a more onerous burden of "obtaining knowledge (of objectionable content) by itself". As a result, the intermediaries need to be a filter, publisher, editor and censor.
"Notice and take down" is a process followed by online hosts/intermediaries for expeditiously removing or disabling access to content hosted by them upon being notified of the alleged illegality of the content. Though this process is designed to prevent "hosts" from either engaging in or encouraging unlawful behaviour on their platform, it is nonetheless susceptible to abuse, as it prevents free expression. Users, more often than not, do not challenge the take down and hosts, on being so notified inadvertently remove the alleged illegal content in order to avoid liability under law, thereby curbing free expression. The challenge to Section 79 and the Information Technology (Intermediary Guidelines) Rules, 2011 was however negated by the court on the ground of procedural safeguard provided in the section. The Court gave respite to the service providers by "reading down" the section and its corresponding rule. The court held that "knowledge" meant knowledge of a court order. Thus an important procedural safeguard has been introduced sparing the intermediaries from having to decide for themselves the illegality of online speech. This also takes care of the recommendation of the United Nations' Special Rapporteur on Freedom of Opinion and Expression to "ensure that any requests submitted to intermediaries to prevent access to certain content, or to disclose private information for strictly limited purposes such as administration of criminal justice, should be done through an order issued by a court or competent body".
Common Cause had also challenged section 80 of the amended Information Technology Act, 2000 as being violative of Articles 14, 19 & 21 of the Constitution of India.
The amended Section 80 grants power to every police officer of the rank of Inspector (in the original Act it was Deputy Superintendent of Police, DSP) to enter, search and arrest (in a public place without warrant) a person who has "either committed, is committing or is about to commit a cyber crime. Under this draconian provision an arrest can be made on the basis of intention to commit a crime depending on the discretion of the police officer.
As officers of the rank of DSP were not sufficient in number, this amendment was done to facilitate law and order. It is stated in the 50th Report of the Standing Committee on Information Technology (IT) that "According to the CBI and the industry, the existing Section 80 of the Act should not be deleted altogether as there is lot of preventive utility of the said Section, especially for search of cyber cafes widely used for communication by anti-national elements". The contention of the Department for merging sections 78 & 80 in order to classify offences rationally as cognisable and non-cognisable depending upon their severity and in line with the IPC and deletion of section 80 was declined by the Committee. It was decided to retain this section in order to avoid serious impairment of the power of search and raid especially of cyber cafes. The Court has not touched upon this issue either.
The Internet is one of the most powerful instruments of this century for increasing transparency in the conduct of the powerful, access to information and for facilitating active citizen participation in building democratic societies. This judgment has negated repressive state action and in future will be pivotal in ensuring free speech and expression to the users of internet. In terms of the Medisonian concept of balance of power, which delineates a system of checks and balances in democratic governance, this judgment tilts our constitutional architecture more towards equipoise. The endeavour of the Court in trying to secure our right to expression may not be a complete victory, but it is certainly a leap in the right direction.
The world is changing at a very fast pace. Being a part of the global village, our legislation should be amended in due course in order to accommodate changing technological advances. Indian websites are regularly defaced by cyber miscreants. Instances of security breaches coupled with news reports indicating India as a popular destination for data theft calls for appropriate amendments. At the same time basic IT training for police officials responsible for implementing the Act to enable them to efficiently deal with such cases, cannot be overemphasised. The need for a separate cyber security law in India is evident. Though this Act upholds the spirit of the UNCITRAL model, the model itself cannot be expected to encompass every aspect of e-commerce. The present law is weak and ineffective in tackling the spurt of cyber crimes in India.
