By : Vishu Mahajan
A 21 year old student had a heated discussion with her Supreme Court lawyer mother over dinner about Section 66A of the Information Technology Act. Her mother said if it bothered her so much why she was not doing anything about it. Then she decided to take on the Union of India. After a long and hard fought battle in the Supreme Court, the tyrannical and oppressive legal provision has been struck down recently. The verdict will go down in the law books by the name of the student: Shreya Singhal vs Union of India and form authoritative precedence for further jurisprudence in the matter.
In this article, we present a brief account of the status of right to free speech in India, Section 66A of the IT Act and how it threatened constitutionally guaranteed rights. We will also go through some of the arguments presented by the Court in striking the provision down.
What is the right to Free Speech and Expression and is it absolute?
Article 19(1)(a) of the Constitution of India guarantees all its citizens the right to freedom of speech and expression. How simple and unsophisticated! The definition however has been enriched by judicial precedent. The courts have ever since the enactment of the constitution given an extremely liberal and open-ended interpretation to this right through various judgements. For example, the right to freedom of speech and expression has been interpreted to include the right to not only express one’s own views but also those of others. From this is derived, the freedom of Press. Similarly, it has been held that in the absence of right to information, citizens cannot completely enjoy their right under Article 19(1)(a). Therefore, even the right to information has been read into it. The right to political dissent leading to a flourishing multi-party electoral system in the country is also grounded in freedom of speech and expression. Clearly then, Article 19(1)(a) forms the bedrock of our democracy.
In the very next article however, the constitution allows the State to impose reasonable restrictions on the exercise of the right in the interests of 1) the sovereignty and integrity of India, 2) the security of the State, 3) friendly relations with foreign States, 4) public order, 5) decency or morality, or 6) in relation to contempt of court, 7) defamation or incitement to an offence.
What is Section 66A of the IT Act
Section 66A of the IT Act, 2000 as amended in 2008 provides punishment of upto 3 years for sending any “grossly offensive”, “menacing” information or information which among other things caused “annoyance”, “inconvenience” or “obstruction” through a computer or any communication device. There have been many instances of misuse of the provision to censor out relatively harmless posts and arrest unknowing citizens for posting something intended in jest.
In 2012, Shaheen Dhada and her friend were arrested in Maharashtra for observing that Bal Thackeray’s funeral shut down Mumbai, Devu Chodankar in Goa and Syed Waqar in Karnataka were arrested in 2014 for making posts about PM Narendra Modi, and a Puducherry man was arrested for criticizing P. Chidambaram’s son. The latest case was the arrest of a Class 11 student for allegedly posting on Facebook “objectionable” comments attributed to Uttar Pradesh minister Azam Khan. In UP alone Section 66A has been invoked in at least 399 cases in the last two years.
These arrests reflect the fact that the law was poorly drafted. More significantly, these show the intolerance and blatant abuse of power by politicians across party lines, and their efforts to manipulate the law to stifle dissent and criticism. The provision was inserted as an amendment in 2008 by the United Progressive Alliance government, and the present National Democratic Alliance regime continues to favour it, saying the law was intended to “regulate the use of cyberspace” and not to curb free speech. In fact, there was practically no discussion or opposition to the amendment in Parliament.
What has the Supreme Court said?
SC struck down Section 66A of the IT Act as unconstitutional and violative of the freedom of speech and expression on the following grounds:
- Vagueness – It said that the definitions of offences under the provision were arbitrary and vague and a penal law is void if it fails to define the offence with definiteness since it leads to discretionary and arbitrary enforcement. Ordinary people must be able to understand what is prohibited and what is permitted
- Breadth and reach of the provision – The section is cast so widely that it can potentially cover any opinion on any subject and all forms of dissent and critique may be silenced by using such a law. E.g. A certain section of a particular community may be grossly offended annoyed, inconvenienced by liberal views on the Internet such as emancipation of women or abolition of caste system, etc.
- Freedom of Speech and expression – The court divided speech into three kinds – discussion, advocacy and incitement. Discussion and advocacy of a particular cause no matter how unpopular it is, is at the heart of free speech. It is only when the speech amounts to incitement that the reasonable restrictions under 19(2) kick in. Section 66A does not distinguish between the three. Mere annoyance, inconvenience, danger, etc. or grossly offensive, having a menacing character are not valid offences under the IPC and cannot qualify as reasonable restriction under Article 19(2). Specifically, they have no connection with public order, decency, morality, incitement to an offence and other allowed reasons for restrictions on free speech under 19(2).
What are the implications of the court decision?
The Internet has slowly become an integral part of our lives and has revolutionized the way individuals and organizations communicate. The view that access to Internet is essential to enjoy other human rights like freedom of expression is gathering pace. The UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression in 2011 emphasized that “the Internet has become a key means by which individuals can exercise their right to freedom and expression. There should be as little restriction as possible to the flow of information via the Internet, except in a few, very exceptional, and limited circumstances prescribed by international human rights law”.
The beauty of the Internet is that it is a truly open and democratic platform that does not discriminate – it does not care whether you are impoverished or a social outcaste and gives your voice equal weightage. We must attempt to increase the access to Internet so that it offers a voice to those in perpetual exile from our consciousness and enables them to influence public opinion. At the same time, we must also endeavour to maintain its open nature.
This judgement lays down the foundation for all future jurisprudence on freedom of speech exercised through the digital medium and will definitely go a long way in protecting the digital space from unnecessary govt. interference.
Having said that, we also agree that the judgement by itself would not be sufficient. A reformed criminal justice system that does not allow malafide complaints is needed since in such cases the legal procedure itself becomes the real punishment to the innocent.
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