My analysis of Judgment on Section 66A

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 Now as the 66A is repealed these informed citizens will have Absolute Power of expression which hopefully will be utilized with restrain.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”.