Terms under 66A Open Ended: Supreme Court

On 13th April, the set of ten petitions challenging various section and rules of the Information Technology Act, 2000 came up for hearing before a Supreme Court bench of Justices J. Chelameswar and R.F. Nariman. An overview of these cases, which will define the contours of free speech over the Internet in India can be found here. These set of cases challenge among other things sections 66A, 69A, 79(3) and 80 of the Information Technology Act and the Information Technology. (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 and the Information Technology (Intermediary guidelines) Rules, 2011.

The arguments in the matter were made in December 2014 before a bench of Justices J. Chelameswar and S.A. Bobde, however due to change in the composition the bench the arguments have started afresh. A number of advocates including Mr. Soli Sorabjee, Mr. Prashant Bhushan, Mr. Sajan Poovayya and Mr. K.K. Venugopal have argued before the previous bench.

Similar to the arguments before the last bench, today’s arguments started with Assistant Solicitor General, Mr. Tushar Mehta placing certain material before Justice Nariman in a sealed cover. The material was was similar to what was previously placed before Justices Chalmeshwar and Bobde. ASG stated that these are the kind of information that are sought to be blocked and political dissent, extreme humour or contrary opinion cannot be blocked. He further added that all the provisions under the Act should be read in context of art. 19(2) of the Indian Constitution. The ASG asked the bench to peruse the material, however the bench stated that they will do so after hearing the petitioners.

On being asked by Ms. Karuna Nundy, who is representing PUCL, that the petitioners be provided a copy of the same, the ASG submitted that the material is confidential and is only for the perusal of the bench and cannot be handed over. However, the bench asked the ASG to provide the petitioners with a copy with a caveat of it not being circulated. Subsequent to this, the petitioners were supplied with the copy of the material, however it was taken back from them before the day’s proceedings concluded. (We have not been able to verify whether the material was returned later).

For the petitioners, Mr. Prashant Bhushan started the arguments in the matter of Common Cause v. Union of India. Mr. Bhushan’s arguments were largely the same as before the previous bench and can be found here. On the subject of s. 69A, J. Nariman observed that the grounds were a copy paste of restrictions under art. 19(2) of the Indian Constitution, however, he agreed that the reasonableness would still need to be tested.

J. Chalmeshwar observed that even though all the offences may be covered under the Indian Penal Code, the slight distinction is that the offences are committed through a computer communication. He further added that technology is certainly a distinguishable medium and distinction based on a medium can be provided though it will still have to conform to art. 19(2). On Mr. Bhushan’s submission that a medium cannot decide the contours of a fundamental right, J. Chalmeshwar observed that while that it true, it can decide the restrictions on that right. To this J. Nariman added that content of a right is different from the content of the restriction.

J. Nariman also asked all the petitioners to see which terms under section 66A can fall within the restrictions of art. 19(2) and also to look at the cases of John Doe v. US, Schenck v. United States and Abrams v. United States. The bench also observed that all the expressions under s.66A even though provided under Indian Penal Code are open ended whereas under IPC they are qualified and have some aspect of mensrea. J. Chalmeshwar stated that s. 66A rolls too many offences under one section and the clarity provided under IPC is not provided in the present section and it might be preferable to provide more clarity as to what situations are covered.

The ASG reiterated and requested the bench to puruse the material that has been placed before the bench and stated that the material was outrageous and offended sentiments of all the religions, be it Hinduism, Christianity or Islam. The ASG also informed the bench that the Centre Government has prepared a set of draft guidelines for application of S. 66A.

The hearing in the matter continues on 14th January.

(Sarvjeet is the Project Manager & a Research Fellow at the Centre for Communication Governance at National Law University, Delhi)

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