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)

Notes of Proceedings- II: Common Cause (A Regd. Society) & Anr. v. U.O.I., W.P. (C) No. 21/2013

Date: 9th December 2014

Common Cause (A Regd. Society) & Anr. v. U.O.I., W.P. (C) No. 21/2013

Section(s) Challenged: S. 66A, S. 69A and S. 80 of the IT Act

Arguing Counsel: Mr. Prashant Bhushan

Mr. Bhushan’s written submission on S.66A can be found here.

Mr. Bhsuhan started his arguments stating that he is challenging three provisions of the Act i.e. s. 66A, s. 69A and s. 80. Mr. Bhsuhan stated that in case of 66A firstly, the grounds are not covered by art. 19(2) and moreover, these are not defined at all anywhere. He stated that in case of criminalization of defamation under s. 499 IPC provides grounds, four explanations and ten exceptions and is fairly defined.

He stated that what causes annoyance is very vague and anything in public interest will annoy someone or the other and that will be the end of freedom of expression in the country. J. Chalmeshwar stated that what is politically annoying and what is a personal annoyance is covered under this and if we strike this down even that goes away. Mr. Bhsuahn stated that IPC covers each and every ground under the IT Act and also the POCSO Act. Everything that can be legitimately criminalized is covered under IPC. J. Bobde asked whether IPC will covered electronic media and whether a new offence is made to deal with new offences. Mr. Bushan said the object cannot be that as the object was promotion of e-commernce.

These terms are vague and render it to easily misuse. J. Chalmeshwar reiterated that political speech we agree however, how do we deal with speech that is annoying on a personal level. Mr. Bhushan replied that these terms are so vague that if I am legitimately using my freedom of speech even that can be curbed.

J. Chalmeshwar stated that any speech in public sphere cannot and should not be curbed by this and there is no doubt about this. When Mr. Bhushan gave the examples of ministers making unwanted statement in Delhi rallies or going to astrologers, J. Chalmeshwar said these it is a settled doctrine that these are the people who impose themselves on the society and have far lesser degree of protection.

Mr. Bhushan gave an elaborate example next stating that assuming that there is a person who puts up a post on Facebook against a particular community and in response to that I put up a post stating that that person’s post is despicable. Now under s.66A I can be booked for finding his speech despicable and that has caused annoyance to him.

J. Chalmeshwar asked whether it is possible to separate the speech is public sphere and private sphere. Mr. Bhsuahn replied that it is not an exercise, which is called for at this stage and the State should be allowed to define these terms clearly in they wish to in a way which brings them in conformity with art. 19(2).

Mr. Bhushan then referred to the case of R. Rajgopalan to point out to the law in case of prior restraint on the exercise of freedom of speech on the ground of defamation and that the law should be reasonable and he refereed to para 22 of the judgment at page 648. Mr. Bhushan stated that Freedom of Speech can be restricted on grounds of defamation but the law has to be reasonable law. J. Bobde gave the example of the law of contempt for a reasonable law, which restricts freedom of speech. In order to test the reasonability of law, which prohibits speech proportionality, should be checked.

He stated that for defamation under IPC, a complaint can be filed under procedure of CrPC and arrest can be happen after the judgment is delivered, however, in the present case S. 80 allows the police officer to come and arrest and seize equipment based on an apprehension of an offence including under s. 66A. He submitted that annoyance and other argues terms cannot be grounds for restricting speech and even for defamation, which is a ground under 19(2) such a law which allows arrest on a apprehension of defamation and without it being proved.

He gave examples of how people who have been in authority have misused the law and gave the example of arrest in Tamil Nadu for criticizing a Congress MP. He further stated that these provisions will fall on the ground of vagueness itself as law providing criminal sanctions cannot be vague. He stated that anything said in public interests could be termed as annoying and speech can be stifled and the person arrested. This will lead to chilling effect and self-censorship. The ASG interrupted and stated that in such a situation a person cannot be arrested as according to s.66A(b) the information has to be false and persistent and merely annoying will not attract the section.

Mr. Bhushan replied by stating that who decides whether information is false should be decided in a trial but here even before trial a person will be arrested and this has been happening in various instances. J. Bobde asked if the authorities have information that anti-national or communally sensitive information is loaded or about to be loaded on the Internet should the Government not have the power to stop such information. Mr, Bhshan agreed that the Government should have such power under s.69A but not on the ground of defamation, annoyance and that will be an unreasonable restriction. He agreed that endangering the security of state is a valid ground.

The ASG stated that it is important to understand the concept of annoyance under Cyber Law and that the annoying information under this sections should be false and persistent. He gave an example and stated if he started sending spam mails to Mr. Bhushan daily that will be annoyance. Mr. Bhushan stated he has no problem with the legitimate use of the IT Act to stop misuse of something which is well defined and clearly of a nature which if not stopped immediately will cause immense public harm. Mr, Bhsuhan stated that social media is a new medium of exercising freedom of speech and people are gradually moving from print to electronic media. J. Chalmeshwar mentioned that on the Internet an information can be accessed by million of people at a go and should that not warrant a special law. Mr. Bhushan replied that it is similar to a television, which is an equally powerful medium but has no excessive restrictions. He also agreed that prior restrictions can be placed on all the mediums, however, it should be seen in what context such restrictions are placed. However, placing a restriction for sending an SMS or Facebook post, which causes annoyance, is not a legitimate ground. It will be an unreasonable restriction and will have such a chilling effect which will ender the democracy meaningless. Democracy cannot function without free speech. J. Bobde added that for appropriate cases courts have powers to issue injunction. J. Chalmeshwar mentioned that freedom to speech does not mean freedom to violate rights of others and Mr. Bhushan agreed that that is the case, however only reasonable restrictions provided under art.19(2) can be applied on speech.

Mr, Bhushan stated that his limited submission is that Freedom of expression is an extremely important right for the working of democracy and therefore the restrictions on it should be carefully looked at and should be reasonable and under the grounds of art. 19(2). Annoyance and other terms mentioned under S.66A are not grounds mentioned under art. 19(2) and speech cannot be restricted on such grounds. Even on the grounds that are provided the restrictions should be reasonable. In the present case a person can be arrested for vague terms and his website or content taken down and this will lead to downfall of democracy. He referred to cases of vagueness including

He stated that S.66A, 69A and 80 is a package where 66A criminalizes and criminalises by use of vague words, 69A provides power to take down content of someone who has either committed the offences under the Act or even likely to commit such offences and 80 provides to power to search, seize and arrest on commission or arrest or on the likelihood of offence. Together these three sections create a regime where anyone who wants to exercise his freedom of speech against anything he considers wrong he runs the risk of being arrested, his content or website being taken down and he being prosecuted.

On being asked by the bench to his objections to s.69A, he stated that he no objection to the Government having a right to take down content however there should be two safeguard, (i) for anything which threatens the security or state or incitement of violence etc. and (ii) there should be safeguards. Some of these safeguards have been provided under the rules. J. Chalmeshwar pointed out that s.69A provides the specific ground for which content can be take down. Mr. Bhushan went through the section and stated that then he has no objection as long as the Government does not step out of these grounds provided. J. Chalmeshwear stated that if someone wrongly imposes s.69A for taking down a harmless cartoon that is an abuse of power and the section in itself and not wrong. Mr. Bhushan stated that as long as this power is restricted to these grounds then he is fine with the section.

He then moved on to s.80 and stated that it provides power to the State to arrest person even before the commission of the offences including under s.66A. J. Chalmeshwar on reading the section asked the ASG why in the amendment act the rank of the officer authorized was downgraded from a Superintendent of Police to an Inspector. The ASG stated that he would check this with the appropriate ministry and get back to the bench.

Mr. Bhsuahn then went to the issue of vagueness and stated that the Court in the case of A.K Roy v. Union of India considered the issue of vagueness rendering a statute unconstitutional. In that case while determining whether the expressions in the law were vague, general and elastic, the Court held that “The impossibility of framing a definition with mathematical precision cannot either justify the use of vague expressions or the total failure to frame any definition at all which can furnish, by its inclusiveness at least, a safe guideline for understanding the meaning of the expressions used by the legislature… The requirement that crimes must be defined with appropriate definiteness is regarded as a fundamental concept in criminal law and must now be regarded as a pervading theme of our Constitution since the decision in Maneka Gandhi v. Union of India. The underlying principle is that every person is entitled to be informed as to what the State commands or forbids and that the life and liberty of a person cannot be put in peril on an ambiguity…”

He then refereed to the case of Maneka Gandhi to state that a procedure to deprive the person of life and liberty under Art.21 does not mean any procedure and it should be fair and appropriate. He stated that similar requirement would be applicable to art.19 as well.

Mr. Bhushan the refereed to the paper book and read out two paragraphs that were:

“In the case of The State of Madhya Pradesh v. Baldeo Prasad AIR1961 SC 293, this Hon’ble Court has held that Section 4 and 4A of the Central Provinces and Berar Goondas Act suffers from infirmities as the definition of the word “goonda” affords no assistance in deciding which citizen can be put under that category, the result of the such an infirmity is that the Act has left to the unguided and unfettered discretion of the authority concerned to treat any citizen as a goonda, and in holding so has declared the Act to be unconstitutional due to the serious nature of the infirmities in the operative sections (i.e. S 4 and S 4A) of the Act. This Hon’ble Court in the case of K.A. Abbas v. The Union of India 1971 AIR 481 has in passing observed that “it cannot be said as an absolute principle that no law will be considered bad for sheer vagueness. There is ample authority for the proposition that a law affecting fundamental rights may be so considered.”

The bench then asked Mr. Bhushan whether certain parts of the section could be severed. He stated that cannot be case and if the bench comes to the conclusion that s.66A is vague and does not define offences then the bench should not attempt to define it and it for the Government to define it once the Court strikes it down and it will not be an appropriate exercise for the court to do. He then referred to SCOTUS cases of Musser v. Utah at page 97, Winters v. New York and Grayned v. City of Rockford. He stated if the present law stands everyone would be afraid to say anything against anyone powerful in the country.

He submitted that the grievance in the case is not uncertainty about the common meaning of these terms but as to the clear determination of what conduct is covered under each of these expressions given the general and vague nature of these expressions. He also stated that the standard of certainty in a criminal statue should be the highest and s.66A should be declared void, as it does not provide precise and clear definitions for each of the terms mentioned under it. Under IPC he stated that concrete harm requirement is prescribed in IPC.

He stated that an expression that is grossly offensive to one person need not be so to another and the conduct specified in the section depends completely on sensitivity of each complainant. He also added that most of these terms are used in IPC, there is greater explanation and specificity is provided and clear standards are provided. He submitted that s. 268 of IPC which deals with nuisance holds that a person is guilty of public nuisance only if an act causes annoyance to the public only to the extent that it interferes with a person’s right to enjoy his/her private property or any public right.