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Section 66A of The It Act

Supreme Court in a landmark judgment struck down section 66A of the Information Technology Act, 2000 which provided provisions for the arrest of those who posted allegedly offensive content on the internet upholding freedom of expression. Section 66A defines the punishment for sending offensive messages through a computer or any other communication device like a mobile phone or tablet and a conviction of it can fetch a maximum three years of jail and a fine.

Over the last couple of years there has been many cases in which police has arrested the broadcasting of any information through a computer resource or a communication device, which was grossly offensive or menacing in character, or which, among other things as much as cause annoyance, inconvenience, or obstruction. In a judgment authored by Justice R.F.Nariman, on behalf of a bench comprising himself and Justice J. Chelameswar, the Court has now declared that Section 66A is not only vague and arbitrary, but that it also disproportionately invades the right of free speech.

In quashing Section 66A, in Shreya Singhal, the Supreme Court has not only given afresh lease of life to free speech in India, but has also performed its role as a constitutional court for Indians. The Court has provided the jurisprudence of free speech with an enhanced and rare clarity. Various provisions of IPC and Sections 66B and 67C of the IT Act are good enough to deal with all these crimes and it is incorrect to say that Section 66A has given rise to new forms of crimes.

The landmark case of Shreya Singhal v Union of India (2015) is a landmark case that plays a very important role in the Indian legal system. The case revolves around the fundamental right of freedom of speech and expression under Article 19(1)(a) of the Constitution of India, which challenged the constitutional validity of section 66A and led to the struck down of section 66A of the Information Technology Act 2000 Section 66A is the punishment for sending offensive messages through communication services, etc

It says that- Any person who sends, by means of a computer resource or a communication device:

  1. any information that is grossly offensive or has menacing character; or
  2. 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,
  3. 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 three years and with fine.

For the purpose 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, images, audio, video and any other electronic record, which may be transmitted with the message.

Brief facts of the case
Two girls-Shaheen Dhada and Rinu Srinivasan, were arrested by the Mumbai police in 2012 for expressing their displeasure at a bandh called in the wake of Shiv Sena chief Bal Thackery’s death. The women posted their comments on the Facebook. The arrested women were released later on and it was decided to close the criminal cases against them yet the arrests attracted widespread public protest. It was felt that the police has misused its power by invoking Section 66A inter alia contending that it violates the freedom of speech and expression.

In a 52-page judgement, which extensively discussed Indian, English and US jurisprudence on free speech, the Supreme Court struck down Section 66-A of the Information Technology Act, read down Section 79 of the Information Technology Act and the related rules, and affirmed the constitutionality of Section 69A of the Act.[citation needed]

Speaking for the Court, Justice Nariman discussed the various standards which are applicable to adjudge when restrictions on speech can be deemed reasonable, under Article 19(2) of the Indian Constitution. The Court held that Section 66-A was vague and over-broad, and therefore fell foul of Article 19(1)(a), since the statute was not narrowly tailored to specific instances of speech which it sought to curb.

Importantly, the Court also considered the chilling effect on speech caused by vague and over-broad statutory language as a rationale for striking down the provision. Further, the Court held that the public order restriction under Article 19(2) of the Constitution would not apply to cases of 'advocacy', but only to 'incitement', specifically incitement which has a proximate relation to public disorder. [citation needed]

Of the challenge on the grounds under Article 14 of the Constitution of India, the Court held that:

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.

The Supreme Court further read down Section 79 and Rule 3(4) of the Intermediaries Guidelines, under the Act, which deals with the liability of intermediaries, mostly those which host content and provide online services. Whereas the Section itself uses the term receiving actual knowledge, of the illegal material as the standard at which the intermediary is liable for removing content, the Court held that it must be read to mean knowledge received that a Court order has been passed asking it to take down the infringing material. [citation needed]

Finally, the Court also upheld the secret blocking process under Section 69A of the Act, by which the Government can choose to take down content from the Internet, holding that it did not suffer from the infirmities in Section 66A or Section 79, and is a narrowly drawn provision with adequate safeguards

Cases referred and law point
The Supreme Court agreed with the petitioners that none of the grounds contained in Section 19(2) were capable of being invoked as legitimate defences to the validity of Section 66A of the IT Act. Any law seeking to impose a restriction on the freedom of speech can only pass muster, wrote Justice Nariman, if it is proximately related to any of the eight subject matters set out in Article19(2).

In Sakal Papers (P) Ltd. & Ors. v. Union of India, [1962] 3 S.C.R. this court said-
It may well be within the power of the State to place, in the interest of the general public, restrictions upon the right of a citizen to carry on business but it is not open to the State to achieve this object by directly and immediately curtailing any other freedom of that citizen guaranteed by the Constitution and which is not susceptible of abridgment on the same grounds as are set out in clause (6) of Article 19.

Therefore, the right of freedom of speech cannot be taken away with the object of placing restrictions on the business activities of a citizen. 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. It cannot, like the freedom to carry on business, be curtailed in the interest of the general public. If a law directly affecting it is challenged, it is no answer that the restrictions enacted by it are justifiable under clauses (3) to (6).

For, the scheme of Article 19is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjected and the objects for securing which this could be done. A citizen is entitled to enjoy each and every one of the freedoms together and clause (1) does not prefer one freedom to another. That is the plain meaning of this clause. It follows from this that the State cannot make a law, which directly restricts one freedom even for securing the better enjoyment of another freedom. All the greater reason, therefore for holding that the State cannot directly restrict one freedom by placing an otherwise permissible restriction on another freedom.

In a separate concurring judgment Beg, J. said, in Bennett Coleman & Co. & Ors. v. Union of India & Ors., [1973] 2 S.C.R. 757 at 829, that the freedom of speech and of the press is the Ark of the Covenant of Democracy because public criticism is essential to the working of its institutions.

Equally, in S. Khushboo v. Kanniamal & Anr., (2010) 5 SCC 600 this Court stated, in paragraph 45 that the importance of freedom of speech and expression though not absolute was necessary as we need to tolerate unpopular views. This right requires the free flow of opinions and ideas essential to sustain the collective life of the citizenry. While an informed citizenry is a pre-condition for meaningful governance, the culture of open dialogue is generally of great societal importance.

Apart from this, if we look closely at section 66A, we can find 2 flaws in it. The first is that the definition is an inclusive one. Second, the definition does not refer to what the content of information can be. In fact, it refers only to the medium through which such information is disseminated. It is clear, therefore, that the petitioners are correct in saying that the public's right to know is directly affected by Section 66A.

Information of all kinds is roped in - such information may have scientific, literary or artistic value, it may refer to current events, it may be obscene or seditious. That such information may cause annoyance or inconvenience to some is how the offence is made out. It is clear that the right of the people to know - the market place of ideas - which the Internet provides to persons of all kinds is what attracts Section 66A.

That the information sent has to be annoying, inconvenient, grossly offensive etc., also shows that no distinction is made between mere discussion or advocacy of a particular point of view which may be annoying or inconvenient or grossly offensive to some and incitement by which such words lead to an imminent causal connection with public disorder, security of State etc.

The petitioners are right in saying that Section 66A in creating an offence against persons who use the internet and annoy or cause inconvenience to others very clearly affects the freedom of speech and expression of the citizenry of India at large in that such speech or expression is directly curbed by the creation of the offence contained in Section 66A.

My Commentary and Analysis
The verdict in Shreya Singhal is immensely important in the Supreme Court’s history for many reasons. In a rare instance, Supreme Court has adopted the extreme step of declaring a censorship law passed by Parliament as altogether illegitimate. The Judgment has increased the scope of the right available to us to express ourselves freely, and the limited space given to the state in restraining this freedom in only the most exceptional of circumstances.

Justice Nariman has highlighted, the liberty of thought and expression is not merely an aspirational ideal. It is also a cardinal value that is of paramount significance under our constitutional scheme.

The Supreme Court agreed with the petitioners that none of the grounds contained in Section 19(2) were capable of being invoked as legitimate defences to the validity of Section 66A of the IT Act. Any law seeking to impose a restriction on the freedom of speech can only pass muster, wrote Justice Nariman, if it is proximately related to any of the eight subject matters set out in Article19(2).

There were two tests that were put to the Section 66A- clear and present danger and the probability of inciting hatred. Section 66A has failed those tests because the posts that people were jailed for did not incite public hatred or disrupted law and order.

I believe that the term offensive in section 66A of the IT Act is very vague. What might be offensive to someone may not be offensive to someone else. Also, it was not an offensive comment or statement, it was a statement questioning the rationality of the Mumbai shut down. Should death of a person irrespective of the importance or stature of the person lead to a complete shut down of the commercial capital of our country? This reasoning does not make sense to me. I believe that the police acted in haste and did not have any grounds for the arrest of the girl. The police acted in haste may be because political parties were involved.

Time and again there is contradiction between freedom of speech and statements that can cause ill will, enmity, menace, etc. More often than not police in our country psychologically gets influenced to sensitivity of political dynamics and the fallout of violence thereafter rather than taking an unbiased right legal decision. This happens because police is controlled and answerable to their political bosses instead of law of the land and judiciary. I believe that the police tried to protect a political fallout rather than doing what is morally and legally right.

Well freedom of speech cannot be absolute but the circumstances or situations where it is not absolute should be practical and rational. One such circumstance is defamation and it’s completely logical in that sense.

Various judgments of this Court have referred to the importance of freedom of speech and expression both from the point of view of the liberty of the individual and from the point of view of our democratic form of government. For example, in the early case of Romesh Thappar v. State of Madras, [1950] S.C.R. 594 at 602, this Court stated that freedom of speech lay at the foundation of all democratic organization.

More often than not the section 66A of Information Technology Act 2000 has been misinterpreted and misused. In any democratic country, freedom of speech and expression has an important role in the legal system. Our country should not be another example like North Korea where the citizens of their country are scared to speak up and share their views and opinions. I completely agree that defamation and sedition are 2 examples of exceptions to freedom of speech and expression and it is totally logically.

In the most recent case of Kanhaiya Kumar the words spoken were such that it could lead to menace and public disorder and these words were spoken out loud but in the given case the girl had no intention to commit any of the given misconduct mentioned in section 66A rather had questioned the reasoning for the Mumbai shut down which she did through a comment on facebook.

If a citizen of a democratic country does not even have the right to question what is happening in the country and whether it make sense, then in what kind of democracy are we living in. For the growth and development of our country, freedom of speech and expression is essential and not having this would take away the true meaning of democracy.

It is a fundamental right and directly impacts the opinion of 1.3 billion towards their country. I believe that the shut down of Mumbai on that day for that particular note may not be reasonable but the comment made by Shreya Singhal was definitely reasonable and thus I believe that the Supreme Court decision of giving the judgment in favor of Shreya Singhal was a sensibleone.    

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