Notes on Government’s Submission in the Shreya Singhal Petition

By Siddharth Narrain [Sarai – Centre for the Study of Developing Societies (CSDS)]

(These note will be revised once a final version is put out)

3^rd Feb 2015- SC- Justices Jasti Chelameswar and Rohinton Nariman

ASG Tushar Mehta argues for the government:

On Day 1 of his arguments, Tushar Mehta argued that section 66A was essentially enacted to target cyber crimes, and did not fundamentally deal with free speech issues. He outlined various cyber crimes including phishing, vishing (phishing over audio) spamming, spoofing, viruses like Trojans, Lovebug viruses etc. He mentioned specific examples including a recent case where the email accounts of top military officers were hacked into, spam mail was sent in the name of the RBI, and emails sent in the name of the Indian Embassy, China.

Nariman later (the next day) responded to this argument saying that its ok for this government to say this, but the law remains even after governments come and go.

ASG argued that the wording of 66A have to be read down, to read it in conformity with 19(2). He also argued that “annoyance” in 66A is not “psychological” annoyance but is in the context of cybercrime.

The judges also stressed that 66A would be enforced by station house officers, lower rung police, who could not be expected to know the nuances of the law

JRN: Answer to basic points- the undefined vague definition of the law, and the overbreadth question

Discussion on the term “grossly offensive”

JRN: “If in my community the burning issue is about conversions, and an email I send gets into the hands of people who would like to use it against me,c an they go to the police and say it is grossly offensive?

ASG asks the judges to restrict the meaning of “grossly offensive”, “menacing” etc. in the context of 19(2)

ASG then refers to a number of comparative judgments (insists that this is not an adversarial litigation)

• DPP v Collins- in this case, the discussion around racist words on the telephone, centred around what constitutes offensive v grossly offensive, and how it has to be judges in the context of an open, reasonable society.

JRN points out that what this case shows is how even legally trained minds can differ on the meaning of “grossly offensive”, while using the same standard, that of a multiracial society

ASG suggests that making the offence under 66A non-cognizable wouldintriduce a step where a judicial mind is applied

Exchange here:

JRN: What can be more offensive than “Pakis” and “niggers”

ASG: In India, some communities are known by their names, would not be a problem being called by these names

JRN: What you just said is highly debatable

ASG cites DPP judgment to say that there must be intent to insult, says in this case weight given to reaction of actual listeners, and not just reactions of members of the general public, and also that the standards should be of an open, just, and reasonable society

Next case: ASG: Queens Bench, Mrs Connolly- sends pictures of aborted foetuses to three pharmacists- here courts says there should be intent to cause distress – here the UK ourt had to read the Communciation Act in accordance with the Human Rights Act

ASG says the limitation of “rights of others” does not apply to 66A as mere sending of information can be a crime

Post Lunch session

ASG pushes for the court to interpret 66A in accordance with 19(2), judges respond saying how can each police officer then distinguish the scope of the section, ASG says that that’s how the meaning to a number of laws are given, my interpretation of courts.

ASG says around 10,000 cases under IT Act according to NCRB last year, but most will not have to do with free speech

JC asks if there is anything to indicate that the term “annoyance” has attained a certain meaning through custom etc.

AAG requests the court to read the law down

JRB remarks that the scheme of the law is the UK Post office Act, 1935, and the distinction s that IPC offences are particular , and not open ended like in the Post Office Act. ASG says there are several open ended sections in IPC, but unable to show any.

ASG: possible abuse per se is not enough to declare a law unconstitutional.

Paul Chambers judgment where he sends a tweet to his girlfriend and is arrested for a bomb hoax.

ASG develops his line of thought- says that read “imminent lawless action” into the terms “grossly offensive, menacing etc”

JRN: This is not a blocking section, but a penal section- a blocking section can be justified on grounds of public order

JRN: Where is the link between “menacing” and lawless action, Reading down is one thing, you are asking us to “read into”, giving ingredients to offences ,where there are none

Court in the twitter case said the message did not constitute a threat.

ASG mentions section 127(1) of UK Communications Act

ASG moves to U.S. case law- Robert Eckhardt, makes 30 calls a week- challenge of vagueness and overbreadth- challenge failed

Chaplinsky- fighting words test- words said without a disarming smile, threatening, profane, obscene

JC says you cant compare Chaplinsky, as the two laws in question are very different

JRN: IN INDIAN context this would translate to “direct tendency to cause acts of violence”

ASG then discusses Whitney v California, Justice Brandeis dissent

ASG ends the day with references to photos he had circulated where religions were shown in bad light

Day 2 of Government arguments– 4^th Feb 2015 Shreya Singhal V UOI (WP Crl 167/2012)

Morning Session:

ASG hands over the UK Crown Prosecution guidelines related to prosecution of communication over social media, also refers to House of Lords select Committee 2014-15, social media and Criminal Offences, and an article titled “Limits of Freedom of Expression on Fb and Social Networking sites: A UK Perspective”

Also hands over Official Research report of European Court of Human Rights on the Internet

ASG tries arguing that community standard test would not apply in India as social ethos is uniform in the states here

ASG: Whitney case , Cantwell, Schenck- facts of US case mentions 1000 people gathered outside a townhall, JC says 1000 people may be nothing here in India, ASG then talks about million of end viewers online

JC : We are conscious of this from day one , but the question is whether the remedy you have invented in legally permissible

ASG: grossly offensive cannot be defined precisely

JC: If someone doesn’t understand the meaning of ‘public order’ in the Constitution, he won’t go to jail, but if someone doesn’t understand this emaning in the IT Act, he will, that is the difference

ASG refers to extreme examples- human excreta on Holy Quran, with a tagline ,t his is the shit of Prophet Mohd, Goddesses shown in bikinis, etc

ASG then says the word grossly is not subjective and has a meaning

JRN: The kind of examples you have given us are clear- day and night, what happens to dawn and twilight? Black and white is clear to everyone, but what happens to shades of grey?

ASG: If you try to define grossly offensive, there will be cases that slip through anyway- only 1 % of people who post grossly offensive images, the rest 99% want a legal remedy.

JRN: Any reformist utterance will be considered to be grossly offensive to a conservative- dwells at length at the example of Asghar Ali Engineer, and the syedna and how any criticism of the syedna would be considered grossly offensive (applying community standards)

ASG: I am trying to find a middle path

ASG: Suggests the language of Cantwell, where ‘incitement to violence’ is used as a standard , and says this could be one way of proscribing certain kinds of speech

ASG: Sunday Times v UK– the standard of ‘pressing social needs” could be read into grossly offensive

ASG:Hustler Magazine case- parody- censorship of political cartoons- here hatred is ok, as long as there is no motive

Pacifica Foundation

NYT v Sullivan

ASG: “I am shouldering the burden of an Act of vintage=of 2009-thee sections are similar to the UK Communication Act and US Telecom Act

Ramjilal Modi: discussion around distinction between “for the maintenance of public order” and “in the interests of public order”

JRN: contrast 295A with 66A- 295A framed much more narrowly, has to be deliberate and malicious, must insult, or attempt to insult

ASG argues that 66A is a preparation stage and that 67, 69etc are targeted at later stages of offences

ASG- Gulshan Rai mentions the North East exodus- this would amount to menacing

JC- “Were the culprits traced and prosecuted?”

Rai- does not give a clear answer

ASG argues that since the medium differs, and has greater reach, the legal response should differ, refers to whatsap images that were circulated during two recent incidents- Muzaffarnagar and Pune

Post Lunch Session:

ASG: Ram Manohar Lohia case (J Subba Rao)- freedom of speech can only thrive in an orderly society

JRN : asks ASG to check Shylabala Devi case – read article as a whole, a s afree and fair minded person

ASG suggests that the judges confine the term ‘grossly offensive’ to ‘public peace, safety and tranquility’

JRN: On severability , distinguishes Romesh Thapar and Chamarbaghwala, says that Romesh Thapar did not severe as it would gave a spread effect- dealt with the area of speech and therefore needed to strike down, whereas in Chamerbagwala, dealt with commercial law (tax) and could strike down.

ASG: Odyssey Communciations (Honi Anhoni case)

Rangarajan case (Oru Oru Gramathile)

ASG argues that just as the courts ditinguihsed motion pictures from other technologies, the Internet should be distinguished and treated differently

JRN: Is the standard for judging the same, or does it depend on the medium?

ASG: Threshold of imminent danger should be less, as on the internet we don’t know what target it will have, and who is accessing the information, internet is more accessible…

JRN: You can create a new offence based on enw technology but parameters of 19(2) will have to be the same – how do these change while judging?

ASG: If the speech that Ram Manohar Lohia made was on the Internet, then proximate danger test should change-

Judges question this presumption- say who will watch this speech- you me and others who are interested.

ASG gives the example of speech that says that a particular community has to be eliminated or that a particular community has the right to rule the world

JRN : Not convinced , JC: Medium has relevance for certain purposes, but how so for 66A?

JRN: Need for 66A is made out by what you are saying , but whether test meets 19(1) a will not change

ASG reads judgments about film, its potential for evil etc

Discussion around ‘spark in a powder keg’ test- ASG says internet like a spark in a powder keg, could start a forest fire

ASG on terms: “necessary” and “expedient” (words in section 69)

JRN: Necessary Ram Manohar Lohia, Expedient- Ramji Lal Modi

ASG says that 66A made cognizable without a reason

ASG indicates that he is trying to make the statute workable

ASG- wants to start on DG (DD) v Anand Patwardhan

Discussion on Hicklin test, JRN mentions that through a 2014 Justice Radhakrishnan judgment, the Hicklin test in India has been formally replaced a community standards test, which is more relative, and less absolute.

Next dates of hearing 24^th to 26^th Feb

66A Hearings Contd: 25 Feb 2015:

ASG Tushar Mehta continues arguing:- Would standards under 19(2) differ based on the medium we are talking about?- cites Romesh Thapar, VG Row, Ramji Lal, Virendra, Ram Manohar Lohia, Hamdard Dawakhana, Sakal Newspapers, KA Abbas, Indian Express Newspapers, and S Rangarajan to argue this proposition- he then says there are American judgments that also back this up. Rangarajan– movie motivates thought ,action, leads to high retention etc, has a unique capacity to disturb and arouse,….movies can’t be equated with other modes of communication.

ASG also quotes a paragraph which says state cannot plead its inability to handle hostile audiences, and that freedom of speech cant be held hostage – the standard should be necessity not, convenience or expediency

ASG quotes Printer Mysore, as quoted in Manubhai Shah. He quotes the Pacifica judgment in the U.S, to say that television is a uniquely pervasive presence in the lives of people and that the presence of sound and pictures makes it a potent medium.

ASG quotes Secy, Ministry of Info and Broadcasting v Cricket Association of Bengal in detail , dwelling upon Justice Jeevan Reddy’s concurring judgment (which JRN describes as a dissent), to say that in this case the claim of the private broadcaster was turned down, but that in the case of the Internet, each individual was a broadcaster, and that while the individual user was entitled to 19(1) g rights, they were not entitled to 19(1) a rights, and also argues for medium specificity.

JRN says that para 37 of CAB case read with para 46 shows that courts were inconclusive as far as this question was concerned

ASG then uses CAB case to argue that when speech and conduct were in one action, then the free speech right involved should be balanced by social values

ASG argues that as per ECHR, restraints on broadcasters was justifiable- program standards could be imposed, there could be restrictions to prevent monopoly

JC , referring to the argument that a new medium requires different standards of reasonableness asks the ASG if years of judicial wisdom can be nullified by one stroke.

ASG replies that in order to protect free speech you need to curtail the misuse of freedom of speech and expression.

ASG says that each individual with a mobile is a potential broadcaster, and that pictures and video can have a tremendous appeal and influence over millions. Television shapes values, norms, etc.

JRN questions the relevance of CAB- saying the majority there asked for an independent public authority to be set up to regulate broadcasting , and upheld the rights of broadcasting, also JRN points to para 76 of judgment to say that mere involvement of commercial interests does not convert it into a 19(1) g claim. JRN says that technological advancement has rendered much of the CAB judgment irrelevant.

ASG continues to press the argument that the Internet is totally different from print, TV, etc, and the relevant threshold for reasonableness should differ.

ASG distinguishes Internet from other media saying the Internet has no geographical boundaries, can be accessed without being literate, does not allow for pre censorship, does not have a statutory regulator, has serious potential for creating public disorder, allows for rumours to reach trillions of people, makes it easier to harass women, create communal frenzy, allows for anonymity, does not need infrastructure. With TV, you at least need a room, with cinema a hall.

JRN says that assuming the judges accept ASG’s contentions it would mean that you need a new offence to deal with internet communication- ‘offences through the Internet”- but even assuming this is true, it does not answer the question – does 66A, in its current form violate guarantees under 19(1) a? He asks the ASG his response to the petitioners argument that the words were vague, overbroad etc.

JC: The punishment could differ for offences over the Internet, but should the standard differ?

JRN: What you are saying repels the Art 14 argument

ASG: The threshold of reasonableness should differ – there should be leeway to the legislature on this

JRN: So you are saying “necessary” instead of “expedient”

JRN: Logically it is difficult to sustain this argument- 19(1) a applies to all forms of speech, how can you suddenly distinguish between forms?

ASG: You have done this with print, film etc, a different threshold has been applied

ASG: We are only concerned about “Offensive material” here, not political views etc.

ASG: In the era of smartphones, anyone can publish material , the inbuilt checks and balances are no longer there. I agree that the Internet should not be regulated, but then it is a potent medium for social disorder

JRB: But thus far there has not been a problem

JC: Lets take the language of defamation in the IPC- it covers all forms(spoke/visual), why do we need a separate offence. The reach may be relevant for purposes of blocking (s 69A)

ASG: If something is so offensive that it has to be blocked, then why should it not be punished?

JRN: Does VG Row allow for ‘reasonable’ to be read differently?

ASG: Indian judgments deal with this question incidentally. In The U.S.- Metromedia Inc. v San Diego– says that each medium [resents its own problems, also Pacifica, Kovacs v Cooper 336 US 77(1949)- here J Jackson in the context of regulation of soundtrucks says that moving picture, radio, soundtruck- each has a law in itself

JRB- In this case the court said that freedom of speech does not involve freedom to drown out speech

ASG: ‘Grossly offensive’ is one part of 66A- ‘data’ has a different meaning, ‘information’, ‘annoyance’, all have different meanings

ASG addresses the question of vagueness as a ground for declaring a provision unconstitutional. Says that court should give a meaning to word from its legislative intent , and that certain words are incapable of precise definition, and that in some situations the legislature, in its wisdom keeps the language vague to take care of future contingencies

ASG quotes the Linden ECHR case to say that law must keep pace with changing circumstances – talks of the notion of foreseability

ASG- In England such words are called ‘elephant words’, you will know these only when you see it

ASG- For instance, Vatsayana’s Kamasutra is a book of research but when a film depicts it becomes obscene

JC- What’s the difficulty in describing an elephant? (laughs)

JRN: At one time there were 365 species of elephants, imagine describing al of them!

JRN- vagueness is a ground for striking down law following Abbas and the Goondas Act case

Judges dismiss the argument that due process is not applicable in India

ASG: In Abbas, court relies on Municipal Commissioner v Amristar.

JRN: Para 46 of Abbas- if law is vague it should be construed according to intention of legislature- ‘boundless sea of uncertainty’

ASG: A.K. Roy- can a definition necessarily give certainty to that expression

ASG: Criminal law cannot require impossible standards , there needs to be adequate warning

JRN: What is the adequate warning in the term; grossly offensive’?

ASG: The use of language carries with it the imperfection of language, in the very nature of things, it is difficult to define, courts must strive to give a narrow concept

ASG gives a list of such examples- ‘criminal intimidation’, ‘hatred, ill-will’, terrorism (Madan Singh v State of Bihar), ‘insurgency’ (Hari Singh Gond), nuisance, untouchability (State of Karnataka v Appa BaluIngala), ‘attempt to commit offence’, ‘beggar’, ‘cruelty’ (Naveen Kohli)

JRN:Most of these are ingredients of offences, not offences themselves

ASG: Quotes from Madan Singh- para 16- terrorism as a manifestation of increased violence, not separately defined in TADA, cant give a precise definition- when object is to overawe, psychological effect

ASG: Legislature is in the best position to understand the needs of the court, courts will interfere only when rights are clearly violated- quotes a Latin maxim to say that there should be liberal construction of written instruments so as to uphold the law.

ASG quotes from a Book called “Purposive Interpretation” by Barak

Post Lunch Session

ASG continues arguments- argues that since India has signed mutual agreements and since other legislations have similar legislation governing the Internet, India should have such laws

ASG presses the argument of purposive interpretation, cites Indira Das (J Katju) to say that words in statutes take their meaning from a statute as a whole

ASG argues that mere possibility of abuse is not enough to declare a provision, that is otherwise valid, as unconstitutional

ASG says that the court should narrowly tailor the meaning of s. 66A to make it workable- standard that should be used os that of reasonable person in a multicultural society. Certain forms of speech will be outside of protection of 19(1)a- words that have a tendency to incite imminent threat to lawful action, threat to violence, words that advocate violence as a means of reform , hate speech, satirical work that does not satisfy the Hustlers test etc.

ASG says that terms and conditions of intermediaries use similar expressions, and so there is sufficient notice

ASG argues that American case law may not strictly apply to India as there are different cultural standards, gives the example of flag burning, and First amendment protection to disclosure of names of rape victims

ASG argues that strict scrutiny not applicable in India, and that petitioners have not satisfied the ‘no compelling interest’ and ‘narrowly tailored’ tests

JRN says the discussion on strict scrutiny is not relevant here

ASG argues Blocking Rules- says that reasons for blocking are required in writing by the rules, and that there are safeguards under 69(a) 1- that involve a request to the designated officer, and nodal officers – of the concerned Ministry or state, 48 hours to bring information to the committee, and strict confidentiality of complainants to be maintained

ASG says that there is a difference between ‘take down’ and ‘blocking’ and that in take down information will not remain on the server, while in blocking it does.. Also says that blocking can be for a certain period and for a specific region.

Feb 26- Last Day of Hearings

ASG argues Intermediary Guidelines/Rules: Argues that many of the lesser known intermediaries are into the business of blackmail, says that intermediaries in India are reluctant to remove objectionable material, and also gives the example of someone who has posted the photo of a 5 year old child as ‘for sale’. Argues that citizens have a right to recourse against this, says that section 79 takes away the right to citizens to legal redress

ASG says that law says that ‘upon actual knowledge’ if the intermediary fails to expeditiously remove content…

JRN: Why should the intermediary take a call at all? They are neutral parties

JRN: Can we read into the section- upon actual knowledge of a court order?

ASG: what if there is defamatory material

JRN: This wont get an exemption at all under sub sec 2

ASG: Gives the example of Bazee case

JRN: On facts you show abetted, aided, induced…

ASG: What if someone is not abetting and people know it is available on a website

ASG: Rule 3 is the same as due diligence requirements followed by most intermediaries

JRN: How will this exemption section work with sec 69?

ASG: Section 69A has broader requirements, where society as a whole is enacted, sec 79 provides for victim applicant

ASG quotes Playboy Enterprises case (US) where a Florida district court found a bulletin board guilty of violating copyright for posting pictures

JRN: How is this provision workable if you have millions of thee pictures posted

ASG: You need grievance redressal officers

ASG Compliance rate in India is only 50% for take down requests, is higher in countries like UK and US (as per Google’s figures)

ASG Do the number of requests you cited include police requests? Are there other jurisdictions which allow for take down based on court orders

ASG cites the Delphi case (ECHR)

ASG goes back to CAB judgment, compares “telecaster” to intermediary to argue that intermediary should only have 19(1)g rights and not 19(1) a rights

ASG: As far as 66A is concerned, Government is only concerned with ‘grossly offensive’ and menacing material, and not with political debate, dialogue, etc.

JRN: As we have seen two English judgments, two sets of judges take very different views on what ‘grossly offensive’ is

ASG: Whenever legislature tried to penalize an offence, it has to use an expression, eg cruelty

ASG : Mere possibility of abuse cannot be a ground to strike down the law

JRN: Abbas has held the reverse too- (striking down the law does not always require possibility of abuse) AK Roy also strikes down a provision

Judges ask ASG to compare the language of s. 66A with that of section 295A, 295, 298, saying that these are much more carefully crafted than 66A.

ASG gives the example of a photo of a former PM (Manmohan Singh? ) with a leading politician (Jayalalithaa?) in a compromising position

JC : The point is that any caricature of a politician is seen as grossly offensive

JC: If someone tomorrow claims that breaking a pencil insults their religious feeling, it would not hold up under s. 295A. The words of s 66A give the potential for this

JRN: In the Jain reason there are reasons given why God does not exist- this would not fall foul under s. 295A, but under section 66A this would be a problem

ASG: If someone does file a s. 295A charge in this case, wouldn’t it be an abuse of law

JRN: The words of section 66A are susceptible to taking in these examples

JC: People like Ramanujam and Galileo would have gone to jail if this section was applied to them (66A)

ASG: Interestingly one of the ingredients of section 295A, (1935 judgment) is that it has to be regarded by a reasonable man to be grossly offensive

JRN: Is every judge a reasonable man (laughter in court). All judges are reasonable, some are more reasonable than others (laughter in court).

ASG: Courts have to try giving a more narrow construction to statute rather than striking it down, quotes from Indira Das.

Advocate Narasimhan- argues that in Kerala the government has introduced an amendment to the Police Act in 2011 (sec 118) which is about public order and deals with abuse by electronic media – petitioner has argues that state government does not have legislative competence

Narasimhan argues that this is a matter that concerns the imperfections of language and that while 19(1) a has evolved dynamically, 19(2) has remained constant. He argued that 19(2) should also be given a dynamic interpetation, that medium should matter , and that 19(2) should be read in consonance with Art 21.

The advocate representing Pondicherry (related to the Karthi Chidambaram prosecution) said that he would adopt the arguments of the ASG related to reading down of 66A

Other intevenors and impleadments included Prof Dhananjoy Mahapatra (Mamta Banerjee cartoon), Tasleema Nasreen.

Adv Manali Singhal pointed out that in the Palghat case, the police, in the departmental inquiry said that the two girls were arrested for their own safety. Singhal asks for compensation to be granted to the girls.

ASG says compensation should be demanded from the police personnel’s pockets and not from the state.

Judges asked Maharashtra advocate what action was taken against the police.

Post Lunch Session:

Rejoinders:

Sanjay Parikh: cites Ram Manohar Lohia and Kameshwar Prasad, says that there has to be ‘proximate connection’ test, and nexus shown, and whether there is an incitement- this is how grossly offensive has to be read. Also says that medium should not make a difference to the standard applied.

Soli Sorabjee: argues that ECHR restrictions are wider than 19(2) and so ECHR judgments not always applicable directly. Argues that if a non judicial authority can sit in judgment of changing subjective standards, it will be the death of free speech. Says test of reasonableness has to be passed, and that mere misuse is not enough to strike down a law (Abbas) but inverse is also true. Crux of the matter is can the exercise of free speech be subject to the subjective satisfaction of a non judicial authority, and that to with vague terms such as grossly offensive . Sakal has not been diluted, still forms the basis of free speech (where court said monopolies may be there but it does not amount to 19(2) restriction) . Sorabjee argued that a different medium, by itself cannot preclude a challenge to constitutional validity.

Karuna Nandy: Agreement between government and petitioners on blocking on certain points – post decisional hearing in context of Rule 9, blocking order to be published, asks for information to provided on how to challenge blocking order. Argues that Manubhai and CAB have established rights of users and Turkey (Yildren case) and Red Lion v FCC (US) have established rights of readers. Says that Ajay Goswami and Aveek Sarkar show that Hicklin Test has been displaced by community standards, and that this test should not be lowest common denominator.

JC: Don’t enter into a second round of arguments.

Sai Krishna: Intermediary is the deep-freeze in which speech gets chilled.

JRN: what do you have to say to ASG’s arguments on intermediaries?

Sai Krishna refers to Spanish law on actual knowledge with court order, and an Argentinian decision reported on the CIS-Stanford website in which requirements of a court order have been read in , says we need a scheme like in section 52 (1) of Copyright Act.

JRN questions the challenge to sec 79 saying how can they strike down an exemption clause that is in the favour of the petitioner?

Sai Krishna says that the question is whether the provision goes beyond 19(2) restrictions

Shyam Diwan: says that written submission will be submitted the next day and if judges needed any clarifications he would do that.

Maharashtra lawyer, referring to judges’ query on the status of the departmental enquiry in the Palghat case, says that one of the police officers had been exonerated in the departmental enquiry, Manali Singhal says this is shocking.