India: Shreya Singhal VS. UOI: Resurgence Of Freedom Of Speech And Expression In The Internet Age

"Let's kill all the lawyers" Had Shakespeare been born five centuries later and tweeted the above line he wrote in Henry VI, Part 2, he could have been arrested and chargesheeted in India, as this could be construed as "causing annoyance" to a class of people.

The Supreme Court on the 24.03.2015 has rightly struck down the most draconian provision of the Information Technology Act, 2000, preceding a couple of incidents which shocked the conscience of the entire nation. The ardent effort of the Government to save the said provision "66A of the IT Act, 2000" by administering it in a reasonable manner was rightly rejected by the Supreme Court judging the provision on its sole merits. The Supreme Court fundamentally rejected this feign argument because Governments may come and Governments may go, but the provision "66A'' shall go on forever thereby not binding the successor Government subjecting it to misuse and resulting in a never ending dilemma. This article examines the provision in the light of what is being hash tagged as landmark #SocialMediaVerdict. The Section 66A of the Information Technology Act, 2000, which came into effect by the Amendment Act of 2009, is produced hereunder:

66A. Punishment for sending offensive messages through communication service, etc .

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 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 three years and with fine.

Explanation.— 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.

Well, colonialism leaving a much longer impact than thought, the genesis of this Section can be traced back to Section 10(2)(a) of the U.K. Post Office(Amendment) Act, 1935, which made it an offence to send any message by telephone which is grossly offensive or of an indecent, obscene, or menacing character; which was later reproduced in Section by Section 66 of the UK Post Office Act, 1953. Thereafter, the section was amended a couple of times and in its present form in the UK, it is Section 127 of the Telecommunication Act, 2003; wherein it condemns the improper use of public electronic telecommunications network. The Supreme Court has further very categorically discussed the scope of Section 66A of the IT Act under various broad heads. This article, further endeavors to briefly explain each of them below:

FREEDOM OF SPEECH AND EXPRESSION:

Section 66A has been challenged on the ground that it casts the net very wide – "all information" that is disseminated over the internet is included within its reach. Therefore the definition1 provided in the Act for "information" is an inclusive one and secondly, the definition does not refer to what the content of information can be rather it refers only to the medium through which such information is disseminated. Further, given its wide domain, the information be it annoying, inconvenient, grossly offensive, does not distinguish between discussion, advocacy or incitement.2 Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a).3 It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inevitably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, etc. The Supreme Court rejected the claim of the State that the said Section can be supported under the heads of public order, defamation, incitement to an offence and decency or morality and upheld our Constitutional Scheme wherein it is not open to the State to curtail Freedom of Speech to promote general public interest.4 Further the Apex Court has upheld and relied upon a catena of judgments which define 'reasonable restrictions' and is of the view that restrictions 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.5 Accordingly, another question which arose before the Supreme Court is to decide whether there is any distinction between the freedom of the print media and that of the electronic media such as radio and television, and if so, whether it necessitates more restrictions on the latter media.6 There is no doubt about electronic media being the most powerful medium both because of its audio visual impact and its widest reach covering the section of the society where the print media does not reach. However the wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial. Hence the virtues of the electronic media cannot become its enemies and this restriction can only be exercised within the framework of Article 19(2) of the Constitution and the dictates of public interest. 7

PUBLIC ORDER

A bare reading of the said Section makes it evident that it intends to punish any person who uses the internet to disseminate any information that falls within the sub-clauses of Section 66A. The recipient of the message is of no importance and similarly the disseminated information may be to one individual or several individuals thereby making no distinction between mass dissemination or dissemination to one person. Therefore such message may not have any potential to disturb the community at large. The nexus between the message and the action taken based on the message by any reasonable man is conspicuously absent. The Supreme Court went on to hold that there is no proximate relation between the said Section and public order. One example laid down by this Court, substantiating the principle of "public order" i.e., a guest in a hotel may make advances or annoy the girls or may have a fracas with one of the friends of the girls which will only attribute to breach of law and order. On the contrary, a man molesting women at lonely places which scares them to do their normal chores would amount to breach of law and order and the breach of public order.8 Therefore 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.

VAGUENESS

It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasized that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited and the innocent may not get trapped for not providing fair warning.9 Notably the U.S. Supreme Court has repeatedly held in a series of judgments that where no reasonable standards are laid down to define guilt in a Section which creates an offence, and where no clear guidance is given to either law abiding citizens or to authorities and courts, a Section which creates an offence and which is vague must be struck down as being arbitrary and unreasonable.10 It was further held that a penal law is void for vagueness if it fails to define the criminal offence with sufficient definiteness. Ordinary people should be able to understand what conduct is prohibited and what is permitted. Also, those who administer the law must know what offence has been committed so that arbitrary and discriminatory enforcement of the law does not take place. Thus judged by the standards laid down in the aforesaid judgments, it is quite clear that the expressions used in 66A are completely open-ended and undefined. Further, the provisions contained in Sections 66B up to Section 67B provide for various punishments for offences that are clearly made out contrary to Section 66A.

CHILLING EFFECT AND OVERBREADTH

It is an established principle that the law should not be used in a manner that has chilling effects on the "freedom of speech and expression"11 Information that may be grossly offensive or which causes annoyance or inconvenience are undefined terms which take into the net a very large amount of protected and innocent speech. A person may discuss or even advocate by means of writing disseminated over the internet information that may be a view or point of view pertaining to governmental, literary, scientific or other matters which may be unpalatable to certain sections of society. It is obvious that an expression of a view on any matter may cause annoyance, inconvenience or may be grossly offensive to some. In point of fact, Section 66A is casts so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.

PROCEDURAL UNREASONABILTY

Section 66A also suffers from the vice of procedural unreasonableness, for example if criminal defamation is alleged, safeguards available under Section 199 CrPc12 will not apply to an offence committed under Section 66A. 13 of the CrPc are also unavailable when it comes to Section 66A. However, the Supreme Court was of the view that having struck down the very Section, the procedural unreasonableness aspect need not be looked into.

SIMILAR PROVISIONS

The legislative intent behind incorporating Section 66A, as discussed above being vague, ambiguous in nature, also suffers from several other procedural drawbacks. It was an essential point of consideration before this Apex Court that a lot of the said provision has already been catered to by other provisions and statutes. Some of the provisions which are over lapping and similarly drafted are:

Defamation: Injury to reputation is a basic ingredient.14 Section 66A does not concern itself with injury to reputation, rather holds that something may be grossly offensive and may annoy or be inconvenient to somebody without at all affecting his reputation.

Incitement to an Offence: Written words may be sent that may be purely in the realm of "discussion" or "advocacy" of a "particular point of view" and may not incite anyone at all. It will be clear 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.

Public Nuisance: A person is guilty of a public nuisance15 who does any act or is guilty of an illegal omission, which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity. The basic difference between the various expressions used between Section 268 and Section 66A are that the ingredients for the offence of a public nuisance become offences in themselves when it comes to Section 66A. Further, under Section 268, the person should be guilty of an act or omission which is illegal in nature; danger or annoyance must be to the public in general. Injury, danger or annoyance are not offences by themselves howsoever made and to whomsoever made.

Obscene Acts and Songs: Any person to the annoyance of others, does any obscene act in any public place, or sings recites or utters any obscene songs, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.16 Therefore the annoyance that is spoken of is clearly defined - that is, it has to be caused by obscene utterances or acts.

Misconduct in Public by a Drunken person: Any person in a state of intoxication, appears in any public place, here conducts himself in such a manner as to cause annoyance to any person, shall be punished with simple imprisonment for a term which may extend to twenty-four hours, or with fine which may extend to ten rupees, or with both.17 It is further observed herein that the annoyance that is caused to a person must only be by another person who is in a state of intoxication and who annoys such person only in a public place or in a place for which it is a trespass for him to enter.

Hence, a clear reading of the above provisions prove that the offences made out under each of the above sections of the IPC are narrowly and closely defined and pretty much conspicuous; on the contrary under Section 66A, most of it has been open ended, undefined and vague. Thus quite obviously, a prospective offender of Section 66A and the authorities who are to enforce Section 66A have absolutely no manageable standard by which to book a person for an offence under Section 66A. In pursuance thereof, the Supreme Court was of the view that Section 66A is unconstitutionally vague and not tenable in law.

SECTON 69 AND SECTION 79 OF THE IT ACT, 2000

Section 69 and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 were also put to challenge on the ground that there is no pre-decisional hearing is afforded by the Rules particularly to the "originator" of information, which is defined under Section 2(za) of the Act to mean a person who sends, generates, stores or transmits any electronic message; or causes any electronic message to be sent, generated, stored or transmitted to any other person. Further, procedural safeguards such as which aren't provided under Section 95 and 96 of the Code of Criminal Procedure are not available here. However, the Apex Court was of the view 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. 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 and upheld its validity.

Section 79 of the Act also follows a set of Rules18 that intermediaries such as Search Engines, Google, Facebook, Twitter, other social networking sites cannot be held liable for the content posted by the individuals. It is simply impossible for the intermediaries to overlook or regulate each and every content. However the exception being that under Rule 3 an intermediary having actual knowledge of the illegal content that has been uploaded and despite of that has failed to remove, disable access to that content, could no longer claim immunity. According to the Rules, such knowledge can be intimidated by the affected person and the said intermediary should act within 36 hours. Now this poses a serious problem since it puts extraordinary amount of pressure upon the intermediaries to determine whether the post they host is illegal or legal. This act in itself is a crippling legal liability since the intermediaries are most likely to act in self preservation and remove the 'offending material' which in turn curtails freedom of speech. This Court has responded to the said issue by 'reading down' Section 79(3) holding that the intermediaries must act upon such 'knowledge' only when there is a Court order directing the take down or any kind of notification by the appropriate government, sparing the intermediaries from deciding for themselves when online speech is illegal. Thus the Supreme Court upheld the constitutional validity of the said section and the rule.

CONCLUSION

Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2). The Preamble of the Constitution of India inter alia speaks of liberty of thought, expression, belief, faith and worship. It also says that India is a sovereign democratic republic. It cannot be over emphasized that when it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme. Nonetheless the Supreme Court has definitely gone a long way in striking down Section 66A and doing away with the most oppressive censorship law that this country has ever witnessed. It has further introduced important procedural safeguards to the blocking rules and to the intermediary liability; it has made the said provisions more speech protective than they were earlier.

Therefore to sum it up, this Court has rightly upheld "Thought control is a copyright of totalitarianism, and we have no claim to it. It is the function of the Government to keep the citizen falling into error; it is the function of the citizen to keep the Government from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored." 19

Footnotes

1. Section 2(v) of the Information Technology Act, 2000

2. Whitney Vs. California 71 L.Ed. 1095

3. Romesh Thappar vs. State of Madras [1950]SCR 594 at 602

4. Sakal Papers(P) Ltd.&Ors. Vs. UOI [1962]3 SCR 842

5. Chintaman Rao vs. State of Madhya Pradesh [1950]SCR 759

6. Secretary Ministry of Information & Broadcasting, Goi Vs. Cricket Association of Bengal [1995]2SCC161

7. Ibidc

8. Dr. Ram Manohar Lohia Vs. State of Bihar & Ors. [1966]1 SCR 709

9. Kartar Singh vs. State of Punjab [1994]3 SCC 569 at para 130-131

10. Musser vs. Utah (92)L. Ed. 562

11. S. Khushboo Vs. Kanniammal [2010]5 SCC 600

12. Prosecution for defamation: where no Court shall take cognizance of an offence except upon a complaint made by the person aggrieved by the ofence.

13. Where any newspaper book or document is obscene, seditious, against the religious sentiments or the integrity of the nation, may be seized.

14. Any person having interest in such book, newspaper may apply to the H.C to set aside such declaration and the case shall be heard by at least three Judges of the High Court.

15. Section 499 of the Indian Penal Code, 1860.

16. Section 268 of the Indian Penal Code, 1860

17. Section 294 of the Indian Penal Code, 1860. 1

8. Section 510 of the Indian Penal Code.

19. Justice Jacksonin American Communications Association V. Douds, 94 (quoted in the judgment)

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