Siddharth Varadarajan: Our politicians Loved Section 66(A) // Supreme Court strikes down Section 66A of the Information Technology Act as unconstitutional
Siddharth Varadarajan: Our politicians Loved Section 66(A)
What do Narendra Modi and Azam Khan, Karti Chidambaram and
Mamata Banerjee have in common? The law will no longer allow someone to be
arrested for writing an online comment that offends or annoys them. In a
landmark ruling that is a shot in the arm for freedom of expression in India,
the Supreme Court on Tuesday struck down as unconstitutional a key provision of
the Information Technology Act that criminalises speech on the internet that is
otherwise perfectly legal were it to be made on television, in a newspaper, or
at a public gathering.
A bench of Justices Chelameshwar and Rohinton Nariman found
the provisions of Section 66A vague and confusing and so liable to abuse that
they ordered its deletion. The offending section prescribed a punishment of
three years for any person who uses a "computer resource" or
"communication device" to send:
(a) "any information that is grossly offensive or has
menacing character",
(b) "any information which he knows to be false, but
for the purpose of causing annoyance, inconvenience, danger, obstruction,
insult, injury, criminal intimidation, enmity, hatred or ill will..."
(c) any electronic mail or electronic mail message for
the purpose of causing annoyance or inconvenience or to deceive or to mislead
the addressee or recipient about the origin of such messages."
Thanks to these loose legal provisions, Devu Chodankar was
booked by the police in Goa last year for a Facebook post in which he feared
Modi would unleash a "holocaust" if elected Prime Minister. Ravi
Srinivasan was arrested in Puducherry for tweeting "got reports that
karthick chidambaram has amassed more wealth than vadra." Vicky Khan, a
class XI student, was arrested for reproducing a quote wrongly attributed to
the Samajwadi Party leader Azam Khan. And Ambikesh Mahapatra, a Kolkata
professor, was charged for circulating a cartoon of West Bengal Chief Minister
Mamata Banerjee that the police said was offensive.
The irony is that none of these statements which the IT Act
sought to criminalise fell under the purview of the "reasonable
restrictions" that Article 19(2) of the Constitution imposes on the right
to free speech. Besides sanctions envisaged by the laws of contempt and
defamation, the freedom of expression in India can be restricted only "in
the interests of the sovereignty and integrity of India, the security of the
State, friendly relations with foreign States, public order, decency or
morality," or if it involves incitement to an offence.
Until 2009, when the Manmohan Singh government smuggled
Section 66A into the IT Act, these were the only limits placed on the right of
a citizen to speak freely using any medium.
What the offending section did was to not only render
precarious the development of social media - a freewheeling space where
informal discussion on current affairs is the norm - but it represented a
long-term threat to the functioning of traditional media too. After all, most
newspapers and TV channels have websites where they upload their content.
Section 66A meant that content which was otherwise protected as long it was
printed or broadcast could be targeted for legal action if it were made
available online.
By upholding the paramountcy of the Constitutional
provisions on free speech, the Supreme Court has effectively restored the
status quo ante, extending the same protections regardless of the medium
through which citizens choose to express themselves.
The court wisely disregarded the assurances given by the
Narendra Modi government and its UPA predecessor that official safeguards were
in place to guard against Section 66A's "misuse". The irony is that
these "safeguards" were not enough to prevent young Vicky Khan from
being arrested, a fact that must have been noticed by the bench as it was
preparing its verdict.
The court also said it would read down Section 79(3)(b) of
the IT Act which makes "intermediaries" like internet service
providers (ISPs) liable for punishment if they fail to "expeditiously
remove or disable access to" material that is considered unlawful, such as
posts which may fall foul of Section 66A or other laws, "upon receiving
actual knowledge" or an official notification about this. This provision
has had a chilling effect on free speech online, especially by activists and
marginalized groups, as ISPs have tended to be highly risk-averse, and would
rather delete supposedly offensive content upon receiving complaints rather
than falling foul of the law themselves.
Even as free speech advocates applaud the boldness of the
Supreme Court, it is worth remembering how most political parties have fought
hard to retain Section 66A and other offensive parts of the IT Act. When
examples began to surface during the UPA years about the manner in which
Section 66A was being used to harass ordinary internet users, Modi declared
himself in favour of free speech and even changed his DP on twitter to black to
convey his opposition to censorship. But in arguments before the Supreme Court,
his government did a U-turn and argued strongly in favour of retaining the
power to criminalise online speech.
Though over-zealous policemen can no longer invoke Section
66A to please their political masters, thin-skinned politicians still have
other weapons in their armoury to harass or silence critics. Criminal
defamation is one such method. Or filing frivolous complaints about promoting
enmity between groups. Most of these charges eventually get thrown out, but the
legal proceedings take time and the process itself becomes the punishment.
In an ideal world, our politicians will read the Supreme
Court order and realize the need to be more tolerant of free speech, especially
speech that is laced with sarcasm, wit, irony and criticism. But this is the
real world, so please forgive me if I am not holding my breath.
Supreme Court strikes down Section 66A as
unconstitutional
The Supreme Court has scrapped a contentious law that was
seen as a major infringement of the freedom of speech online because it allowed
the arrest of a person for posting "offensive" content. Section 66A
of the Information Technology Act, introduced in 2000, "is
unconstitutional and we have no hesitation in striking it down," said
Justice R F Nariman, reading out the judgement. "The public's right
to know is directly affected by section 66A," he added. The Supreme
Court had been asked to examine the legality of Section 66A, which makes
sending information of "grossly offensive or menacing character"
punishable by up to three years in jail.
The law was challenged first by a law student named Shreya
Singhal after two young women were arrested in 2012 for posting comments
critical of the total shutdown in Mumbai after the death of Bal Thackeray, the
Shiv Sena chief. The group that challenged the law in the Supreme Court later
expanded to include the NGO Common Cause and Bangladeshi writer Taslima
Nasreen. "Nobody should have fear of putting up something because of
the fear of going to prison," said Ms Singhal, adding that after today's
verdict, hate speech will be dealt with under other laws that govern the
Internet. The contention by most of the petitioners was that Section 66A is vague and
allows the police arbitrary interpretation and misuse of the law. The previous
government, headed by the Congress, said that the law was necessary to combat
abuse and defamation on the internet. The new BJP government also defended the
law in court. "The government was willing to come up with additional
stringent guidelines to prevent misuse of 66A," said Information and
Technology Minister Ravi Shankar Prasad today. Critics of the law said it was
misused by political parties to target their opponents and dissidence. A
professor in West Bengal was arrested in 2012 for posting a cartoon of Chief
Minister Mamata Banerjee, for example.
