The Hon
Supreme Court of India has pronounced its verdict on 24 March 2015 regarding
Scrapping of I T Act’s section 66A.In the words of Hon Supreme Court, “Section
66A is struck down in its entirety being violative of Article 19(1) (a) and not
saved under Article 19(2).”
The Bench turned down a plea to
strike down sections 69A and 79 of the I T Act, which deal with the procedure
and safeguards for blocking certain websites and exemption from liability of
intermediaries in certain cases, respectively.
Everywhere it is seen as Huge
Victory of Netizens as A DRACONIAN ACT has been shown death bed by Hon.SC but
in fact SC has never referred the said provisions of act AS DRACONIAN anywhere.
Let me
critically examine the observations in 123 pages verdict delivered by Hon
Judges.
In para 9 SC
highlighted that Public Criticism is essential for Democracy as Freedom of Speech
and Press is Ark of Covenant of Democracy. In para 10 judges referred that
Importance of Freedom of speech though not absolute but were necessary as we
need to tolerate unpopular views. Informed citizeny is a precondition for
meaningful governance the culture of open dialogue is generally of great social
importance.
Here Hon. SC has reposed more faith
in wisdom of citizens than law makers. Indeed Time will upset the current faith
and belief of SC that Free Trade of Ideas on Social platforms is according to
the true spirit of Freedom of Speech and Expression. Informed citizeny is
indeed a pre condition but Are our citizen really well informed and Digital
Literate? Are our young netizens really bothered about whatever is available
through this medium? When preferred site for downloading songs is hosted from
outside India and due to which huge quantum of revenue is lost by Film
Industry, are these citizen be called as Informed? When most of the traffic on
internet is related to Pornographic search, are these citizen be called well
informed? When Cyber crimes are increasing at rapid pace and in geometric
progression Are these citizen be called well informed? Does our informed
citizens believe POER CORRUPTS AND ABSOLUTE POWER ABSOLUTELY? Now as the 66A is
repealed these informed citizens will have Absolute Power of expression which
hopefully will be utilized with restrain.
Para 12 mentions “To justify suppression of Freedom of
Free Speech there must be reasonable ground to fear that serious evil result if
free speech is practiced.”“It is clear 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,” said a Bench of Justices J. Chelameswar and Rohinton F. Nariman. In
Para 13, It was highlighted that concepts of understanding Freedom of Speech
and Expression are Discussion, Advocacy and Incitement. It is only when such
Discussion or Advocacy reaches level of Incitement that Article 19(2) kicks in. Discussion, or even advocacy, of a particular cause, no matter
how unpopular it was, was at the heart of the right to free speech and it was
only when such discussion or advocacy reached the level of incitement that it
could be curbed on the ground of causing public disorder.
Is there any measuring device available which will tell with
certainty that now Incitement level is reached? With the magnitude of users and
reach internet can cover and also cultural, linguistic, religious diversities
will it be really possible to identify whether the expressions are limited to
discussions or advocacy or have they crossed to the level of incitement? And
who will be proper Judge to decide?
Para 14 is very unique one wherein SC has made its observations “A
word needs to be said about use of American Judgments in context of 19(1). In
virtually every judgment of SC reference has been made to judgments across the
Atlantic. IS IT SAFE TO DO SO????
Can we not apply our own logic for the medium specially developed,
owned and controlled by states across the Atlantic????
In Para 20 judges relied on across the Atlantic Justice
Jackson’s stating “It is not function of government to keep citizen from
falling into error; it is function of citizen to keep Government from falling
into error.”
So if government is not supposed to prevent and protect its
citizen from falling into errors then what is meaning of Welfare State? The
government has brought the section 66A with very genuine intention of
protecting rights of its citizen in cyberspace and from falling them into various
traps laid by this new medium of communication, which is in its very early
days, but government machinery failed miserably in its implementation.
In fact in subsequent Paras 28 Judges have clearly accepted the
distinction between Internet and other media and rejected to accept that
Article 14 has any say in the matter.
In subsequent Paras court has
observed that “Mere annoyance need not cause disturbance of public order. Under
Sec 66A the offence is complete by sending a message for purpose of causing annoyance
either persistently or otherwise, without in any manner impacting public
order.” “The definition of offences under the provision was “open-ended and
undefined”. “An article in order to be banned must have a tendency to excite
persons to acts of violence”. The court then went on to say that Section 66A
actually had no proximate connection with public order or with incitement to
commit an offence. “The information disseminated over the Internet need not be
information which ‘incites’ anybody at all. Written words may be sent that may
be purely in the realm of ‘discussion’ or ‘advocacy’ of a ‘particular point of
view’. Further, the mere causing of annoyance, inconvenience, danger, etc., or
being grossly offensive or having a menacing character are not offences under
the [Indian] Penal Code at all,” the court held.
Holding several terms used in the
law to define the contours of offences as “open-ended, undefined and vague”,
the court said: “Every expression used is nebulous in meaning. What may be
offensive to one may not be offensive to another. What may cause annoyance or
inconvenience to one may not cause annoyance or inconvenience to another.”
By applying the same logic SC has accepted that the terms are
open-ended and undefined. In my view open ended terms can be very well defined
by the authorities as per case to case basis. Judiciary wanted to reestablish
its supremacy in interpretation of statues and does not want to delegate it to
any other agency. Have we not observed in many cases from our judiciary where
one court interprets in one way and other court reverses the interpretation?
Can it not be said that when a thing can be offending to one person his right
to retaliate is invaded now? The cases which were before SC were the one’s in
which SC viewed from one angle and left other angle totally unseen due to its
openness and vagueness but not considering True spirit behind the same.
The court pointed out that a penal
law would be void on the grounds of vagueness if it failed 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,” the court said.
So it would have been more appropriate had SC asked to narrow down
the scope of open-ended ,under defined and vague words to finality so that
people would have understood it more properly. Even in Para 49, SC maintained
that wholesale substitution of provisions as suggested by ASG, is not possible
for acceptance.
In paras 82 to 90 SC has merely
pointed out that Sec 66 A has absolutely no manageable standards by which to
book a person for offence under it. The section is cast so widely that
virtually any opinion or any subject matter would be covered by it. Such is the
reach of the section 66A and if it is to withstand the test of
Constitutionality the chilling effect on Freedom of speech would be total. Section
66A needs to be struck down on grounds of over breadth and vagueness. Also
submission of government about doctrine of severability is vague as government
did not indicate which part of Section 66A can possibly be saved. SC also
opinioned that possibility of Section 66A being applied for purpose not
sanctioned by Constitution can not be ruled out and it must therefore be held
to be wholly unconstitutional and void.
So by examining the entire judgment I feel that only due to
open-ended words or vagueness of words Hon SC thought the provisions of Section
66A as unconstitutional. Had it not been the CUT COPY PASTE tendency of our
lawmakers and a little application of mind so as to at least define the terms
in Section 2 of I T Act, rather than leaving then open and for broader
interpretation, there was no flaw in Section 66A. SC has only decided on issue
brought before it and still there is ample time for government to learn from
mistakes of past. The government should define precisely all the words prior to
their insertion in any statute and enact new Section 66A in much simplified
form but at the earliest.
Cyberspace can not be left to be ruled by whims and fancies of the
netizens and their self consciousness, as it has totally changed the rules of
game. Governments may come and go but the possible destruction by such
lawlessness in Cyberspace may have severe impact on humanity and probably we
would not be alive to witness the same. The aftermath of lawlessness in
Cyberspace would be very devastating and which we will be witnessing soon.
The hysteria shown by activists after the verdict is yet to settle
down. Everybody is celebrating it as day of independence of internet. I can
only PREY TO GOD “FORGIVE THEM BECAUSE THEY ARE NOT KNWOING WHAT THEY ARE
CELEBRATING”.
