Crushing Dissent, The Indian Way
* Swapna Jha
The hurriedly passed 2008 amendment to the Information Technology Act brought in draconian provisions with vague and arbitrary terms resulting in utter misuse of the law by the state agency. They were indiscriminately deployed to quell perceived expressions of dissent by citizens, against those in power. Amongst the more famous of such notorious incidents were the arrest of Ms Shaheen Dadha for daring to question the shutdown of the city of Mumbai, after Shiv Sena Chief Bal Thackeray's death, in an innocuous post on Facebook, Ms. Renu, who 'liked' and shared the said post, Mr. Ravi Srinivasan, a businessman for his tweets about Union Finance Minister Sri P. Chidambaram’s son and Mr. Ambikesh Mahapatra, for posting on social networking sites critical cartoons of the Chief Minister of West Bengal. These, and many such incidents compelled Common Cause to challenge these laws by way of a Public Interest Litigation.
The Common Cause Intervention
In the year 2013, Common Cause approached the Apex Court with prayers for issuance of appropriate writ declaring Sections 66A, 69A and 80 of the amended Information Technology Act, 2000 as violative of Articles 14, 19 & 21 of the Constitution of India and hence unconstitutional. The Apex Court admitted the petition and after hearing the parties at length declared Section 66A as unconstitutional, upheld Section 69A and made no mention of Section 80 in the judgment.
Apart from the vague phraseology, Section 66A was challenged as being violative of the fundamental right under Article 19(1)(a), which guarantees that all citizens shall have the right to freedom of speech and expression, subject to reasonable restrictions provided under Article 19(2). The petition contended that no pervasive and blanket ban/restrictions could be imposed on the right to freedom of expression and the right to life and personal liberty as was happening under Section 66A. It contended that the said Section was capable of wanton abuse resulting in deprivation of the personal liberty of people, which per se was a flagrant violation of the principles of fairness and justness of procedure implicit in Article 21 of the Constitution.
It was pleaded before the Court that as per the established law of the land, the constitutional protection of free speech was calculated to insulate the freedom from such a “chilling effect”. The impugned Section 66A of the amended Information Technology Act, 2000 allowed the institution of criminal proceedings on frivolous grounds against law abiding citizens exercising a freedom guaranteed to them under the Constitution. Under the provisions of this Section, offence was alleged to have been committed if the information provided was either annoying or inconvenient etc. The Section thus made no clear distinction between mere discussion or advocacy and incitement. It denied citizens the right to know, share or receive any information provided on the internet and directly hit upon their freedom of speech and expression.
The petition contended that the offence created by the Section 66A had no proximate relation with any of the eight exceptions contained in Article 19(2). However, the Union of India claimed that the restriction could be supported under the heads of public order, defamation, incitement to an offence and decency or morality.
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The Striking Down of Section 66A: Shreya Singhal v Union of India
The Court, hearing a clutch of petitions, including Common Cause’s, delivered a landmark judgment in March 2015 in Shreya Singhal v. Union of India1 , holding that the exception of ‘public order’ did not hold good in the present case, as it seemed to punish any person using the Internet to disseminate any information falling within the sub-clauses of Section 66A rather than causing disturbance to the community. It was observed that the Section failed to make a distinction between mass dissemination and dissemination to one person, or require that such message should have a clear tendency to disrupt public order. The absence of a nexus between the message and action that may be taken based on the message did not result in an immediate threat to public safety or tranquility and hence had no proximate relationship to public order. It held that the need for suppression of free speech arose only when free speech posed a clear and present danger to public tranquility, a condition conspicuously absent in the case in point.
The Court ruled that the Section was neither aimed at defamatory statements nor had proximate connection with incitement to commit an offence. It did not grant the refuse sought by the government, under the exception of “decency” or “morality” either. When the Section did not pass muster the test of reasonableness of restrictions, the counsel for the government requested the Court to read into the Section all the exceptions contained in Article 19 (2). The Court turned down this proposal as that would amount to a wholesale substitution of the provision. The constitutionality of Section 66A was challenged on grounds of vagueness too. Citing international as well as domestic precedents, the Court agreed that the expressions used in 66A were completely open-ended and undefined. The Court opined that every expression used in the Section was nebulous in meaning, which neither conveyed a demarcating line nor provided manageable standards for establishing offence, thereby rendering it unconstitutionally vague.
Another contention in the petition was that Section 66A had a chilling effect on the freedom of speech and expression. The Court declared the Section as unconstitutional on this ground too, as in its present form, the Section took within its sweep protected speech or innocent speech so as to have a chilling effect on people’s freedom of expression. The desperation of the government can be gauged from the fact that when the Section did not stand the test of Article 19(2), its counsel requested for the application of the doctrine of severability, so that the invalid part of the Section could be severed and the rest could be saved. An enactment, capable of being applied to cases where none of the restrictions prescribed under 19(2) were met, or used for purposes not sanctioned under the Constitution was not held to be valid to any extent by the Court, which declared that no part of Section 66A was severable and the provision as a whole was unconstitutional. The challenge to the constitutional validity of Section 69A was disregarded by the Court on grounds of the said Section having adequate procedural safeguards.
Free Speech After Shreya Singhal
The striking down of Section 66A was much hailed by the citizens, who presumed that the right to free speech had been restored by this judgment. However, this may not be so, as is evident from reports of the National Crime Records Bureau (NCRB). According to the data compiled by the NCRB, 4,154 new cases were filed under Section 66A in 2015 as compared to 3525 cases in 2014. As per the report, 3,514 cases were disposed by the police, 1,510 cases were sent for trial, trial completed in 328 cases, 143 convicted, 2,522 cases pending trial at the end of 2015. The report states that 3,137 people were arrested under this section in 2015 and 575 were languishing in custody at the end of 2015. It has also been clarified that data under 66A is inclusive of cases under Section 66 too. Though the report does not provide a monthly breakdown, the probability that all reported cases were filed prior to the law being scrapped by the Court in March 2015, seems unlikely. It is rather strange that law enforcement agencies and the lower courts are unaware of the scrapping of 66A and are booking, trying cases and convicting for conduct which has ceased to be an offence.
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Some reports also expressed reservations on the Apex Court’s belief that there were sufficient checks and balances built into Section 69A of the IT Act. The contention in the petition was not on power of blocking content but rather the manner in which the blocking was being done. While it is true that reasons have to be recorded in writing in such blocking orders so that they may be assailed by way of a writ, unfortunately, the orders themselves are a secret and do not outline reasons for the blocking. There are no reports available in public domain on the procedure followed under the rules, and the state has routinely, in complete secrecy, blocked content on the internet preventing any judicial scrutiny. The lack of transparency in decisionmaking will deplete accountability and result in curtailing of freedom of the citizens. This is a matter of concern and we all need to be vigilant on this aspect of the law. It gets even more bizzare. The Department Related Parliamentary Standing Committee on Home Affairs in its 189th Report has stressed the need for a law replacing Section 66A, with adequate modifications. The Committee feels that owing to rapid development of technology and the sophisticated modus operandi adopted by the criminals, the laws dealing with cybercrime need to be reviewed on a regular basis. It noted that subsequent to 66A being declared unconstitutional, several aspects needed consideration for bringing them under the ambit of law.
Presently, there is no section of law to cover spoofing which according to the Committee, should be an offence under the law. It recommended more elaborate and specific law, which could pass the test of judicial scrutiny. It asserted that any such content, which when transmitted online was likely to promote hatred and enmity amongst communities, race, religions etc. must be covered under the IT Act by means of a separate section. It also recommended that any transmission of information claimed as being innocently forwarded should not be excluded from the purview of the offence and any such person sending or transmitting the information should also be liable for the offence. In short, the proposal is to combine sections 153A and 153B of the Indian Penal Code and make it an offence under the IT Act as well.
Duplication of laws would further add to the burden of overburdened courts and lead to what the Apex Court tried to prevent by scrapping 66A. The Committee recommended stricter penalties under IT Act, as information can be disseminated faster and wider online, resulting in more severe and damaging impact. However, this observation reveals a tendency to view the Internet as an inherently dangerous medium, one that deserves greater regulation with decreased safeguards to protect the rights of the citizens. This is a cause for worry.
Unless the new law is in consonance with the safeguards detailed in the Court’s ruling and clearly establishes a very close link between the impugned expression and an imminent risk of discrimination, hostility or violence attributable to such expression, it will only serve as an instrument of oppression of expression. India is aspiring to be an equitable society, and the constitutional guarantee of liberty of expression should be used to fortify our strengths, rather than suppressing dissent. The expression of differing opinions may be inconvenient or annoying, but it is the life-line of our democracy. Restrictions on free speech should operate not as a cloak to protect powerful political figures, but as a means to counter grave and serious dangers to democracy.
*Swapna Jha is a Senior Legal Consultant with Common Cause.