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The Death Of Section 66A

Published on Sat, Mar 28,2015 | 15:53, Updated at Sat, Mar 28 at 15:53Source : CNBC-TV18 |   Watch Video :

In a landmark judgment the Supreme Court this week stood up for free speech. A two member bench of Justice Chellameswar & Justice Nariman struck down Section 66A of the IT Act as unconstitutional and reassured the nation that the right to freedom of speech and expression is sacred and paramount. But as Payaswini Upadhyay reports this is only half the battle won!

It was the winter of 2008. On December 22nd, an otherwise slow moving Parliament showed great efficiency when it passed 8 Bills in less than 15 minutes. One of those bills amended the Information Technology Act, 2000 and thus Section 66A was born - with no discussion or debate on the reasons or consequences of the amendment. The genesis of Section 66A can be traced back to the 2007 Parliamentary Standing Committee, Chaired by MP and former Delhi Police Commissioner- Nikhil Kumar. The committee wanted the government to address the issue of spam emails. In response the Department of Information Technology drafted Section 66A. The Committee wasn’t convinced but it let the Section be.

Gautam Bhatia
Lawyer- Civil Liberties  
Lecturer, National Law School of India University
“You’ll see the purpose was to tackle very specific internet related offences like identity theft, phishing, spam, cyber bullying and so on. But of course, the drafting was so poor that over time it evolved into something totally different.”

Darius Khambata
Senior Counsel
Former Advocate General, Maharashtra
“There is some indication that the terminology used in the Section is similar to the terminology used in the UK Post Office Act, 1953 and their Telecommunications Act, 2003. We have not used exactly the same language but I also presume there was some sort of a reaction of the parliament to cases of misuse of exploitation of electronic media to cause injury and I think this must have been a reaction to cases such as those.”

The poorly drafted and hurriedly passed Section 66A prescribes 3 years of imprisonment for a person who sends information that is grossly offensive and messages that are likely to cause annoyance, inconvenience, danger, obstruction, insult...etc via a computer or communication device.

A legal provision meant to deal with spam email became a menace against free speech. In the last few years 66A has been used to silence tweets, Facebook likes, cartoons and comedy. It was used to arrest 2 girls criticizing the Bal Thackeray funeral procession for causing a traffic jam.

Palghar Girl Arrested in 2012 under Sec 66A for a Facebook comment on Mumbai’s traffic situation after Bal Thackeray’s demise.  
“Last week was really like a bad dream…it wasn’t against someone; it was just a point of view. I think there should be freedom of speech as we live in 2012 and a democratic country.”

It was used to arrest a businessman for tweeting against a Minister’s son.

Ravi Srinivasan,  Businessman, Puducherry arrested under Sec 66A for a tweet against P Chidambaram’s son
“Certainly I don’t think I need to be arrested for tweeting. I have not used any foul language; nor have I abused anybody or made comment that is anti-national.”
 
Soon after the arrest of the Palghar girls, 21 year old Delhi law student Shreya Singhal filed a petition in the Supreme Court arguing that Section 66A violates freedom of speech guaranteed by Article 19 in the Constitution.. After almost 3 years, the Supreme Court agreed with Singhal and 8 others who fought the battle with her.

Shreya Singhal, Petitioner
“They have upheld the rights of the citizens today because internet is far reaching and so many people use it that it is very important for us to protect this right today”

Renu Srinivasan- Palghar Girl Arrested For Facebook Comment
“I am very happy...we have got justice after 2 years. Our post was not abusive. It should not have led to an arrest.”

The apex court held that expressions such as “grossly offensive” or “menacing” used in Sec 66A are so vague that there is no manageable standard against which an offence can be measured. Emphasizing on the chilling effect this could have on free speech, the SC held that Section 66A “arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right.”

Darius Khambata
Senior Counsel
Former Advocate General, Maharashtra
“The judgment of the SC in Shreya Singhal is perhaps one of the most important judgments our Supreme Court has given in the recent times. It’s important, firstly, for the freedom of speech that it advocates but the Supreme Court has consistently upheld Art 19(1)(a) and used it to strike down laws that impinge upon freedom of speech. To my mind, it’s really important because it upholds the right of the citizen to know and it upholds the right of the individual to put out his information or his freedom of expression on the net – a facility not available few years ago- usually freedom of speech was thought of in terms of the media or a more public expression like a public meeting but now every individual citizen has the right to go on the net and express himself and herself freely.”

It’s been a week of celebrations for those who braved arrests and those who fought in court for our freedom of speech. But before you uncork the bubbly remember this. The Supreme Court has paved the way for a new 66A. It has also upheld Section 79 – thus allowing intermediaries such as Internet Service Providers and websites to take down content. And this battle does not extend to several Indian Penal Code provisions that do exactly the same as 66A.

In the Shreya Singhal case, one of the arguments by the petitioners was that a new medium like the internet did not need new laws, as laws to moderate freedom of speech already existed. The Supreme Court disagreed – paving the way for a new Section 66A. But in drafting it the Government will have to heed this judgment and the distinction it makes between advocacy and incitement. It says only advocacy which can lead to imminent public disorder can be restricted under Article 19(2) of the Constitution.

Gautam Bhatia
Lawyer- Civil Liberties  
Lecturer, National Law School of India University
“In a case called Rangrajan, the court said that the relationship between speech and disorder must be like a spark and a powder keg. And in a different case, the court said that there must be imminent incitement to lawless action. So, in this case, the ocurt endorses the second viewpoint and it says that advocacy of subversive ideas in itself cannot be a ground for punishment and restriction. Only when it rises to the level of incitement can it be so punished and in doing that, the court ensures that mere ideas, thoughts cannot be punished. There most be a close proximity between your speech and the evil that the government wants to curtail.”

Sidharth Luthra
Senior Advocate, SC
Former Additional Solicitor General of India
“The idea of the Supreme Court was to draw a distinction between what can be protected by the exceptions in Article 19 (2) and what can’t and what should not. And that has been done specially in the context of internet, which as a medium, has the widest reach and it was important for the Supreme Court to lay down this distinction. I am hopeful the government, when and if, it chooses to frame a new legislation will keep these principles in mind which are very salutary guiding principles.”

The Shreya Singhal petition also challenged Section 79 of the IT Act. This section exempts intermediaries like websites and internet service providers from any liability if they take down information used to commit unlawful acts. That meant any complaint could prompt an intermediary to take down information. The Supreme Court has read down the Section to say that intermediaries will now be expected to take down information only if a court or government order demands it.

Darius Khambata
Senior Counsel
Former Advocate General, Maharashtra
“I think the restrictions imposed by Section 79, as read down, are reasonable. A court order obviously has to be followed. But even government orders are important because there are areas of national security, there are areas of incitement to an offence, there are areas of communal or religious incitement where the government must and should intervene swiftly- you can’t wait for a court order. Yes; that can be misused as everything can be but you have recourse to courts and I would encourage any citizen who feels that a government order is misused to go to court and to prevent action under Section 79.”

So the ‘annoying’ 66A will be re-written and the ‘inconvenient’ Section 79 has been read down. But what the Information Technology Act can’t do, the Indian Penal Code can. So watch those tweets and Facebook likes, cartoons and roasts – or you could very well be back in jail!

Section 153A of the Indian Penal Code prohibits spoken or written words that can promote enmity between different groups based on religion, language etc. It was applied alongwith 66A to arrest the Palghar girls. Standup comedy group AIB was booked under Sec 292 of the IPC that prohibits selling, distributing, circulating and publicly exhibiting obscene content. Section 298 was used to file an FIR against film director Ram Gopal Varma after he tweeted against Dera Sacha Sauda’s leader Gurmeet Ram Rahim Singh.

Sidharth Luthra
Senior Advocate, SC
Former Additional Solicitor General of India
“So far as these provisions which have been held constitutionally valid – they are still on the stature book; they are still capable of being used and in some cases, they are still being used to prosecute citizens even today and in the context of electronic communications, electronic record and content on the internet. So that position has not really changed except that those provisions, unlike Sec 66A, are a lot more specific – some have been upheld by the SC. Therefore the likelihood of an arrest, the likelihood of a prosecution exists under those provisions even today if, of course, the act is found to be offending.”

Darius Khambata
Senior Counsel
Former Advocate General, Maharashtra
“I think this judgment has to be viewed in a broader context. You have to view it as a judgment that upholds civil liberties as opposed to the tyranny of the majority. And I think that principle will affect a number of provisions- I would hope including the curative petition that has been filed on the judgment under Sec 377 of the IPC- and several other matters because the heart of our Constitution is protection of individual and civil liberties and rights against the will and tyranny of the majority and that’s why this judgment is so important.”

In a thin skinned country, full of holy cows, including those of Azam Khan – this judgment reminds the State – that it may disapprove of what we say but it ought to defend to the death our right to say it.

In Mumbai, Payaswini Upadhyay

 
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