Lex Witness has always been at the cutting edge of covering issues that are of great importance. It is encouraging to see a historic judgement bestowed by the apex court of the country reminding the nation of its constitutional right to Freedom of Speech and Expression.
We been a proponent of free speech and was against any sort of stifling of the freedom of speech and expression. Given the draconian status of the Section, we reported utterly against it. We welcome the judgement of the Hon’ble Supreme Court of India. The Section had spread a pall of gloom on the horizon of freedom of expression. Indians felt stifled as we saw the arrests of individuals for their innocuous posts and remarks. The Court has upheld the value that “liberty of thought and expression is a cardinal value…of paramount significance under our constitutional scheme.”
The Apex Court has held that the Section 66 A failed to draw distinction “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.”
Expressing that the Section 66A had a chilling effect on constitution as it arbitrarily, excessively and disproportionately invaded the right to free speech, right to dissent, right to know, and that, the Bench of Hon’ble Justices J Chelameswar and Rohinton F Nariman finally held,“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).”
Hon’ble Supreme Court of India has shown that it will not let the state violate the most sacred the fundamental rights of the citizens and that it will always stand against any forces that will try to stifle that freedom. Indeed, a law as anachronistic as Sec 66A was a slur on our democracy.
Lex Witness intends to celebrate this judgement and moment as well by bringing to you an in-depth info-analysis through the forthcoming stories with special reference to Section 66A authored by Madabhushi Sridhar, Central Information Commissioner, New Delhi and a former Professor of Law, and Coordinator – Center for Media Law & Public Policy, at NALSAR University of Law, Hyderabad
Apex court resurrected the freedom of expression which was struck with a severe blow in the form of Section 66A of Information Technology Act 2000. The draconian section introduced by amendment in 2008 has eaten away the liberty of many citizens for their ‘netizen’ statements – simple and innocent because the police used it to stifle voices critiquing the powerful politicians. With this judgment by J Chalameshwar and RF Nariman, the Supreme Court judges, the 24th day in March 2015 became a milestone for both net-expression right and press freedom which was threatened by 66A. The threat against print media was not just virtual but real because all newspapers have their vibrant web presence.
This top judiciary had a thorough dissection of this section which is full of open ended and undefined expressions that has potential to send many palm-top users (mobiles) behind bars. Supreme Court averted that danger by removing a dangerous weapon from the hands of political dictators and their police (public) servants. Now dead, Section 66A was more deadly than AK 47 or AK 56, being a bloodless killer of political opposition and personal liberty.
Most significant freedom fundamental to democracy as enshrined in Article 19(1) was almost killed by this section because it did not care the limits listed in 19(2). The SC also made an emphatic statement that the difference of medium did not make any difference to uphold 19(a) once again. Court rejected the contention of the Union of India saying ‘a relaxed standard of reasonableness of restriction should apply regard being had to the fact that the medium of speech being the internet differs from other mediums on several grounds’.
However the SC accepted this argument in a limited way. The point that ‘several factors making a distinction between the print and other media as opposed to the internet and the legislature provided for separate offences so far as free speech over the internet is concerned’ could be considered as an intelligible differentia having a rational relation to the object sought to be achieved – that there can be creation of offences which are applied to free speech over the internet alone as opposed to other mediums of communication. Based on this argument Article 14 challenge has partially sustained in this judgment. Controversial section was not struck down on the ground of breaching Article 14. But this did not help the section to survive as it was totally violative of 19(1) because it went out of 19(2).
By the time apex court removed it, this section has affected different sections of common citizens who were either tweeting or writing on the walls of facebook. In 2013 an Andhra Pradesh MLA from Chirala (Prakasham District) Amanchi Krishna Mohan used it to stifle the voice of civil rights (PUCL) leader Jaya Vindhyala; he got her arrested under this section using his clout with police officials. Jaya was critical on Facebook about the political activities of the local MLA. The Chirala legislator alleged that such comments caused “annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will” to him and the present TN Governor. How could they be criminal wrongs? If what Jaya wrote is defamatory and thus objectionable, then she could have the defence of truth and fair comment as provided in Section 499 of the IPC. SC rightly found that this Section 66A does not allow any such defence. If truth defames a person, it is no defamation, but if truth annoys a person the person writing about truth on net will be jailed!
Two girls Shaheen Dadha and her friend Renu Srinivasan arrested for a comment posted on Facebook questioning the shutdown of Mumbai after the demise of Shiv Sena founder Bal Thackeray, raised the flag on the abusive power of this section. The government considered their comments as ‘unwarranted’, ‘hasty’ and ‘cannot be justified’. The ministry defended it in response to a PIL against Section 66A saying the Thane police SP (Rural) has been suspended for arresting the two girls despite an instruction by the IGP not to do so.
Several innocent citizen went behind bars because of its misuse by political leaders in power:
It is gratifying to note that in some of these cases victims of suppression of expression could get compensation in recognition of their rights. Thanks to the Apex Court, now the cases against expression online will be closed. Though media filled its columns with explosive spirit opposing 66A, the media associations and political opposition should have agitated for its deletion from statute book. A student of law could do what the big fourth estate could not. The cardinal value of liberty of thought and expression has a resounding victory with judiciary standing by it again.
Lack of clarity in communication in definition of new crime under Section 66A proved fatal as the people did not know what legislature wanted them to not do. One of the strong grounds on which the SC struck down the draconian Section is ‘vagueness’. Supreme Court on 24th March 2015 accepted the argument of the petitioners that ‘the language used in Section 66A is so vague that neither would an accused person be put on notice as to what exactly is the offence which has been committed nor would the authorities administering the Section be clear as to on which side of a clearly drawn line a particular communication will fall’.
Collin’s dictionary defined most of the terms used in Section 66A, as follows:
“Offensive:- 1. Unpleasant or disgusting, as to the senses 2. Causing anger or annoyance; insulting 3. For the purpose of attack rather than defence.
Menace:- 1. To threaten with violence, danger, etc. 2. A threat of the act of threatening 3. Something menacing; a source of danger 4. A nuisance.
Annoy:- 1. To irritate or displease 2. To harass with repeated attacks Annoyance 1. The feeling of being annoyed
2. The act of annoying.
Inconvenience: 1. The state of quality of being inconvenient 2. Something inconvenient; a hindrance, trouble, or difficulty
Danger:- 1. The state of being vulnerable to injury, loss, or evil risk 2. A person or a thing that may cause injury pain etc.
Obstruct:- 1. To block (a road a passageway, etc.) with an obstacle 2. To make (progress or activity) difficult. 3. To impede or block a clear view of.
Obstruction:- A person or a thing that obstructs.
Insult:- 1. To treat, mention, or speak to rudely; offend; affront 2. To assault; attack 3. An offensive or contemptuous remark or action; affront; slight 4. A person or thing producing the effect of an affront = some television is an insult to intelligence 5. An injury or trauma.” (As quoted by the SC)
In State of Madhya Pradesh v. Baldeo Prasad, [1961] 1 S.C.R. 970 an inclusive definition of the word “goonda” was held to be vague and the offence created by Section 4A of the Goondas Act was, therefore, violative of Article 19(1)(d) and (e) of the Constitution.
The real rule is that if a law is vague or appears to be so, the court must try to construe it, as far as it may be, and language permitting, the construction sought to be placed on it, must be in accordance with the intention of the legislature. Where however the law admits of no such construction and the persons applying it are in a boundless sea of
“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. 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.”
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. (SC said this in in K.A. Abbas v. The Union of India & Another, [1971] 2 S.C.R. 446)
In Harakchand Ratanchand Banthia & Ors. v. Union of India & Ors., 1969 (2) SCC 166, Section 27 of the Gold Control Act was struck down on the ground that the conditions imposed by it for the grant of renewal of licences are uncertain, vague and unintelligible.
In A.K. Roy & Ors. v. Union of India & Ors., [1982] 2 S.C.R. 272, a part of Section 3 of the National Security Ordinance was read down on the ground that “acting in any manner prejudicial to the maintenance of supplies and services essential to the community” is an expression so vague that it is capable of wanton abuse.
In Kartar Singh v. State of Punjab, (1994) 3 SCC 569 at para 130-131, it was held: “130. 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.”
The Supreme Court took from the cases cited by Additional Solicitor General to prove how vagueness strikes the constitutionality of a law. In Director of Public Prosecutions v. Collins, (2006) 1 WLR 2223, the very expression “grossly offensive” is contained in Section 127(1)(1) of the U.K. Communications Act, 2003. A 61 year old man made a number of telephone calls over two years to the office of a Member of Parliament. In these telephone calls and recorded messages Mr. Collins who held strong views on immigration made a reference to “Wogs”, “Pakis”, “Black bastards” and “Niggers”. Mr. Collins was charged with sending messages which were grossly offensive. The Leicestershire Justices dismissed the case against Mr. Collins on the ground that the telephone calls were offensive but not grossly offensive. A reasonable person would not so find the calls to be grossly offensive. The Queen’s Bench agreed and dismissed the appeal filed by the Director of Public Prosecutions.
The House of Lords reversed the Queen’s Bench stating: “The parties agreed with the rulings of the Divisional Court that it is for the Justices to determine as a question of fact whether a message is grossly offensive, that in making this determination the Justices must apply the standards of an open and just multi-racial society, and that the words must be judged taking account of their context and all relevant circumstances. I would agree also. Usages and sensitivities may change over time. Language otherwise insulting may be used in an unpejorative, even affectionate, way, or may be adopted as a badge of honour (“Old Contemptibles”). There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates. In contrast with section 127(2)(a) and its predecessor subsections, which require proof of an unlawful purpose and a degree of knowledge, section 127(1)(a) provides no explicit guidance on the state of mind which must be proved against a defendant to establish an offence against the subsection.”
In Chambers v. Director of Public Prosecutions, [2013] 1 W.L.R. 1833, the Queen’s Bench was faced with the following facts: “Following an alert on the Internet social network, Twitter, the defendant became aware that, due to adverse weather conditions, an airport from which he was due to travel nine days later was closed. He responded by posting several “tweets” on Twitter in his own name, including the following: “Crap1 Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high1.” None of the defendant’s “followers” who read the posting was alarmed by it at the time. Some five days after its posting the defendant’s tweet was read by the duty manager responsible for security at the airport on a general Internet search for tweets relating to the airport. Though not believed to be a credible threat the matter was reported to the police. In interview the defendant asserted that the tweet was a joke and not intended to be menacing. The defendant was charged with sending by a public electronic communications network a message of a menacing character contrary to section 127(1)(a) of the Communications Act 2003. He was convicted in a magistrates’ court and, on appeal, the Crown Court upheld the conviction, being satisfied that the message was “menacing per se” and that the defendant was, at the very least, aware that his message was of a menacing character.” The Queen’s Bench Division reversed the Crown Court.
The two judges of the Hon’ble Apex Court analysed and concluded: ‘These two cases illustrate how judicially trained minds would find a person guilty or not guilty depending upon the Judge’s notion of what is “grossly offensive” or “menacing”. In Collins’ case, both the Leicestershire Justices and two Judges of the Queen’s Bench would have acquitted Collins whereas the House of Lords convicted him. Similarly, in the Chambers case, the Crown Court would have convicted Chambers whereas the Queen’s Bench acquitted him. 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. 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. This being the case, having regard also to the two English precedents cited by the learned Additional Solicitor General, it is clear that Section 66A is unconstitutionally vague’. Thus, the Supreme Court has put an end to the new communication crime.
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