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)

3rd 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– 4th 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 24th to 26th 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.

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Why is there a need to repeal 66A?: CCG’s submission to the Law Commission

We agree that the section 66A of the Information Technology Act is highly problematic. The government initially took the position that it was the misuse of the law rather than the law itself that was of concern. After the highly publicized Palghar arrests in 2012, the Department of Electronics and Technology, Government of India issued an advisory on January 9, 2013 to all State governments and Union territories, asking them not to arrest any persons under Section 66A without the prior approval from a seniorfs_59396fficer.

However, despite the government advisory, Jaya Vindhyala, from People’s Union for Civil Liberties, was arrested in May 2013 in Andhra Pradesh for posts critical of legislator Amanchi Krishna Mohan and Governor K. Rosaiah on her personal Facebook account. Kanwal Bharti a Uttar Pradesh based scholar was arrested in August 2013 for his comments on Facebook, blaming the Uttar Pradesh government for bias against Durga Shakti Nagpal, a civil servant who was suspended controversially for allegedly demolishing an illegal mosque. More recently, the application of Section 66A demonstrates a worrying intolerance for dissent. In the past month alone, Section 66A was invoked to arrest atleast 6 people (an engineer in Goa and five students in Bangalore including one activist of the Aam Aadmi Party) for content which was “Anti-Modi”.

The ongoing trend of unreasonable arrests under section 66A clearly demonstrates that clarifications and advisories are insufficient. In addition, leaving the discretion with regards to when Section 66A should be applied to the police, an arm of the executive, is inconsistent with basic standards required under Article 19 of the International Covenant on Civil and Political Rights. The UN’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression opined that “legislation restricting the right to freedom of expression must be applied by a body that is independent of any political, commercial or other unwarranted influences in a manner which is neither arbitrary nor discriminatory, and with adequate safeguards against abuse, including the possibility of challenge and remedy against its abusive application.” It is therefore clear that the law is untenable in its present form.

Section 66A contain a number of deficiencies which render it unworkable and unconstitutional. These include the following:

  1. A number of operative terms (“grossly offensive” or “menacing character” or causing “annoyance or inconvenience”) in the section are incurably vague. The Thirty-first Report of the Committee on Subordinate Legislation draws attention in explicit terms to the absence of any definitions of these terms and to the mounting instances of the section’s consequent arbitrary application and misuse.
  2. The standards for merely inconveniencing another or causing offence or annoyance are both subjective and considerably lower than those ordinarily required in order to invite criminal sanction. As a result, section 66A discriminates against content online without clear justification in a manner inconsistent with Article 14 and is disproportionate and therefore unreasonable in its restriction of the Article 19(1)(a) right (even assuming that one of the pigeonholes in 19(2) can be applied to cover such imprecise terminology).
  3. The terminology used in section 66A does not afford any clarity as to which content specifically is prohibited and which is permissible. Given that it creates a criminal offense whose violation can mean three years’ imprisonment, by design, section 66A would have an unjustifiable chilling effect on speech.
  4. The use of the term “sending” rather than “publishing” extends the scope of the offence. Private sending of otherwise legal content on the Internet is criminalized, and as a result the same act of sending through media other than the Internet would be entirely legal.

The Supreme Court is seized of the matter of the section’s constitutionality in Shreya Singhal v. Union of India, where a number of the above arguments have been presented by the petitioner. In addition, it is important to note that Section 66A is not necessary in order to address problematic content. The Indian Penal Code, 1860 already covers “criminal intimidation” under Section 503, “insult” under section 504 and “enmity, hatred and ill-will” under section 153A(1)(a).

For the foregoing reasons, we would propose that Section 66A be repealed in its entirety.

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- IV: Internet and Mobile Association of India & Anr. v. U.O.I. & Anr., W.P. (C) No. 758/2014

We will shortly be uploading the transcripts in the matters of ); Peoples Union for Civil Liberties v. U.O.I. & Ors., W.P. (Crl.) No. 199/2013 and Anoop M.K. v. U.O.I. & Ors., W.P. (Crl.) No. 196/2014

Date: 10th December 2014

Internet and Mobile Association of India & Anr. v. U.O.I. & Anr., W.P. (C) No. 758/2014

Section(s) Challenged: S. 79(3) and the Information Technology (Intermediaries guidelines) Rules, 2011

Arguing Counsel: Mr. K.K. Venugopal

 

Mr. K.K. Venugopal restricted his arguments to Section 79 of the IT Act and to Rule 3 of the IT (Intermediaries Guidelines) Rules, 2011 (IT Rules).

Mr. Venugopal emphasized that an intermediary is defined in Section 2 of the IT Act which was amended in 2009. According to him it subsumes of every aspect of Internet Service Providers (ISPs). He clarified to the Bench that he was appearing on behalf of the Internet & Mobile Association of India.

Mr. Venugopal argued that the intermediaries provide a platform on which anyone can upload data like their views, messages, advertisements, etc. He contended that the intermediaries are passive actors as they don’t know as to what is the content and they also do not initiate the content.

Mr. Venugopal argued that approximately 3 lacs messages and 100 hours of video are uploaded every minute and it is not possible for the intermediaries to monitor each and every thing therefore, some sort of protection should be there for the intermediaries. He contended that Article 19(1)(a) of the Constitution is involved here.

Mr. Venugopal submitted that Section 69-A of the IT Act expressly provides for intervention as per Article 19(2) of the Constitution. Thereafter he, read out Section 79 of the IT Act.

To all these arguments Justice Chelameswar responded that if the violative content is brought to the notice of the intermediary or ISP then it can be filtered.

Thereafter, Mr. Venugopal further contended that everyone who is concerned with internet is covered by Section 79. He also contended that the aricle ‘the’ before ‘unlawful act’ could not have been used in the language of Section 79(3)(a) without defining what such unlawful act includes, anywhere before. He had the same issues with Section 79(3)(b).

To this Justice Chelameswar inquired as to what is meant by ‘actual knowledge’ used in Section 79(3)(b)?

Mr. Venugopal replied that actual knowledge meant that if someone communicated to the intermediary about the violative content. He further explained by way of an example that if someone complains that he was defamed by the violative message then actual knowledge would be if the intermediary is informed about this.

To this, Justice Bobde raised the point that is Section 500 of the IPC a defence to this?

Mr. Venugopal further contended that the immunity provided under Section 79(1) is subject to Section 79(3). He claimed Section 79(1) to be highly important for the functioning of the internet and submitted that the intermediaries have immunity under Section 79 and without this immunity the internet would collapse as it is too vast. He also submitted that the platform being provided by the intermediaries could be anything including the internet. Therefore, he contended that any restriction on such immunity as imposed under Section 79(2) or Section 79(3) must be in conformity with Article 19(2) of the Constitution.

To this, Justice Chelameswar inquired that did the intermediaries have no control over the information being uploaded on the platform provided by them.

Mr. Venugopal replied saying that in the newspapers there is an editorial function.

Justice Chelameswar interrupted saying that the intermediaries no doubt have the fundamental right to carry on business but would carrying on such business constitute freedom of speech on the part of intermediaries.

Justice Bobde further added by way of an example that in the case of a telephone exchange the intermediary that is to say the exchange is neither the speaker nor the listener. So, when the intermediary does not express anything by itself then how can it constitute freedom of speech under Article 19(1)(a) on the part of the intermediary. He asked Mr. Venugopal that does the intermediary express anything when it is not the owner of the property which is available on its platform, it cannot alter it, it cannot damage it, etc.

Mr. Venugopal expressing his concern said that Section 79(3) itself says that the intermediary has control therefore, if the Government tells the intermediary to remove some content then it has remove it.

Justice Bobde said that the intermediary can withhold access in such a case. He further held that when the intermediary is only giving access to others being a mere facilitator it is not by itself expressing anything and therefore, there is no question of Article19(1)(a) being available to the intermediary in this case.

Mr. Venugopal argued that the latter part of Section 79 provides for taking down of information by the intermediary on being put to notice by the Government. He also discussed Section 69-A which provides for blocking of content. He submitted that if the entire page is to be blocked on account of a violative message then such restriction has to be in conformity with Article 19(2). He contended that the impact of blocking under Section 69-A and of taking down content under Section 79 is the same and therefore, the rights of the ISPs are also similar. He also pointed out that the rights of the ISPs suffered in blocking under Section 69-A but it is not so in the case of Section 79.

Mr. Venugopal contended that a very wide power has been given to the State under Section 79 and the ISPs only provide a platform for the users to interact.

Justice Bobde again reiterated that the ISPs have a fundamental right to do business but do not have the right to freedom of speech under Article 19(1)(a) because as an ISP they are not expressing anything.

Justice Chelameswar added to this giving an example that say a man provides microphone, loudspeakers, etc. for a public meeting. Now here such person is only providing an equipment and not expressing anything himself.

Mr. Venugopal clarified that in the case of a person providing microphone, loudspeakers, etc. he himself is not retaining any part of the speech made by someone else. However, in the case of ISPs they can retain the speech that has been expressed on the platform provided by them.

On this, Justice Chelameswar inquired if the ISPs also retained the property in the content uploaded on their platform.

Mr. Venugopal replied saying that virtual platform is in the nature of something like the Tata Press Book but because an ISP retains the content it comes under its control. It can choose to take it down, block it or let it be as it is. He also said that though, the owner of such speech has expression but as the ISP is retaining such speech on its platform, distributing it among its subscribers, controlling it and can also destroy it therefore, controlling such speech becomes part of free speech of an ISP under Article 19(1)(a).

Justice Bobde replied to this saying holding that such content is definitely speech however, it is not the expression of the ISP. He explained with help of an example saying that if a radio station is started and an interview is broadcasted on it then the radio station has merely distributed it to its listeners and the radio station is neither the person who interviewed nor the person who was interviewed.

Mr. Venugopal responded saying that the ISPs are facilitators. They have control over speech which is hosted on their platform. Through the internet they disseminate information. They need not know what the content of such speech or information is. They also do not need to hold property in such content. Despite all this, it constitutes speech of the ISPs because they are disseminating it.

Justice Bobde clarified to this submission saying that disseminating the content is the occupation of an ISP and not its speech.

Mr. Venugopal responded and said that disseminating speech of others constitutes speech of the ISP. In support of this submission he contended that the ISPs or the intermediaries are conduits and they deal with speech.

To this, Justice Bobde said that ISPs or intermediaries do business with speech but they do not as such have speech.

Justice Chelameswar referred to the judgment in the case of Sakal Newspapers.

Mr. Venugopal contended that the Court struck down an attempt to curve newspapers. He also referred to a judgment having the citation (1995) 5 SCC 139. He specifically referred to Paragraphs 9, 19, 22 (especially the latter part of Paragraph 22) and 27. He contended that advertisements are the life blood of free media as they generate most of the revenue for the newspapers and most of the costs are paid from them. In support he also contended that Article 19(1)(a) applies to publication in a telephone directory.

Mr. Venugopal conceded that though there was no question of speech being expressed by newspapers in the case of Sakal Papers but a bar on limiting the number of advertisements that could be published in a newspaper clearly attracted Article 19 (1)(a) and violated it.

Mr. Venugopal also referred to the judgment by Justice A. P. Sen in the case of Bennett Coleman.

Justice Bobde said that in such a speech as we are concerned with in the present case there are 4 people involved. First is the speaker, second is the recorder (this might be the speaker also), third is the reproducer and the fourth is the listener. He said in newspapers there are news items which also contain views of the editor himself. Therefore, the newspaper itself speaks as the reporting also is done by the reporter himself. He also said that the advertisements are the words of the seller therefore, a question arises as to whose speech is actually involved.

Thereafter, the Court rose for lunch at 1:00 p.m.

After lunch, Mr. Venugopal resumed his arguments and contended that Section 69-A of the IT Act deals with intermediaries. He said both Section 69-A and Section 79 would deal with the same topic. Section 69-A requires blocking and Section 79 require taking down. He contended that in Section 69-A and Section 79(3)(b) the word used is ‘information’. He further submitted that the right under Section 69-A has to be in consonance with Article 19(2) of the Constitution.

Justice Chelameswar sought a clarification on Section 79(3)(b) regarding as to what was meant by ‘without vitiating the evidence’.

To this, Mr. Venugopal responded saying that the violative material must be preserved but should be made inaccessible to the public.

Mr. Venugopal contended that upon being notified by the Government that a particular information available on the ISP’s platform is violative, the ISP has to take that information down and the Government is also not required to give any reasons for such take down notice. To this, Mr. Venugopal expressed his apprehension that what if such violative content is a criticism of the Government in power and its policies. He contended that there might be a subjective opinion of the Government to this.

To this, Justice Chelameswar clarified saying that Section 79 is not creating any offence. It is only giving immunity to the ISP.

Mr. Venugopal contended that development is essential for a Democracy and the internet aids such development. Internet is essential as a public utility for the benefit of the public and its use is enormous.

Mr. Venugopal emphasised that an intermediary does not initiate the content and it is not in his knowledge therefore, he cannot monitor or control it from being uploaded. He pointed out that the ISP is an innocent party and is a passive actor.

Justice Chelameswar said that prosecution does not follow from Section 79.

Mr. Venugopal heavily stressed on the point that Section 79(1) is an essential pre-requisite of internet service. So far as Section 79(2) and Section 79(3) are concerned the restriction embodied in them must be relatable to Article 19(2). Also, the fetters under Section 69-A must be traceable to Article 19(2). He stressed that Section 79(1) could be a standalone provision. However, restrictions could be there as to the content. He contended that freedom of speech can be curbed only for reasons as provided in Article 19(2).

Mr. Venugopal argued that an ISP is extremely vulnerable and is highly likely to be prosecuted each time a complaint is made. He pointed out that there is unlimited area for take down. He also pointed to the fact that there exist no means for testing whether the purported act is unlawful or not. He argued that the word “unlawful” is not capable of a particular meaning in this case. Also, what is unlawful has not been defined in the Act.

Mr. Venugopal next contended that everyone is entitled to object to the content posted on the platform provided by the ISP. So, on a mere complaint of someone that an ISP being put on notice to take down unlawful content has not done so expeditiously, the ISP now should go to the Court, engage a Counsel, bear the expenses and the agony of waiting. He raised a question that can free speech be restricted based on the ipse dixit of an interested party? He suggested that instead of this any retired High Court judge can be appointed to expeditiously examines the written representation made by an aggrieved party.

To this, Justice Chelameswar pointed out that a provision of this sort already existed in the IT Act that is to say Section 50 which provides for a Cyber Appellate Tribunal headed by a Judge of a High Court, a retired Judge of a High Court or qualified to be a Judge of a High Court.

On this point Mr. Venugopal added that Sections 48 and 57 of the IT Act also might be of some relevance.

Mr. Venugopal next argued that a high arbitrary power had been given to the Government under Section 79. He said that a political party in power governs the country and decides policies. Therefore, it will ensure that its policies are not subjected to criticism and all such content would thus, be controlled by the Government. The innocent ISP would have to go and defend himself in a Court of law and the greatest punishment is to face a criminal trial and the repeated adjournments therein.

To this, Justice Chelameswar replied saying that no one in this country actually bothers about a criminal case.

Mr. Venugopal cited the judgment in Pepsi case bearing the citation (1998) 5 SCC 749 on hardships faced in trials. However, he couldn’t find the relevant paragraph in it wherein this aspect was expressly talked about.

Mr. Venugopal thereafter, argued on the IT Rules. He took strong objection to Rule 3(2)(b), Rule 3(3), Rule 3(4) and Rule 3(7).

At this juncture Justice Bobde asked Mr. Venugopal to give examples of intermediaries.

In response Mr. Venugopal handed over copies of a bound volume of types of online intermediaries to the Bench as well as to the opponent and named a few like Facebook, Twitter, Google, Flipkart and Yahoo.

Thereafter, Justice Bobde asked that are these intermediaries being harassed?

To which, Mr. Venugopal replied in the affirmative saying that they are regularly being called to the police stations.

Mr. Venugopal handed over copies of a report prepared by Google titled Google Transparency Report India which accounts for the take down requests received by Google and its sister concerns during the period between January 2013 and June 2013. As per this report there were 25 take down requests received from the police out of which 4 were received by Youtube, 3 by Google Images and 1 by Google +. 5 requests were received under the head ‘Reasons Unspecified’. No reasons whatsoever have been given by the Government or the police for these requests. He contended that the grand total of the take down request in India for each quarter only for Google and its sister entities would be approximately 500.

To this Justice Chelameswar responded that going by this figure also out of billions of streams only 500 or even say 1000 have been found to be objectionable.

Mr. Venugopal highlighted the issue of the debilitating effect of prosecution on the ISPs.

To this Justice Chelameswar said that Section 79 only says that the objectionable content should be removed upon receiving information.

Mr. Venugopal further contended that as per the transparency report by Google for the period between January 2013 and June 2013 the take down requests for content being defamatory were approximately 200. Similarly, for hate speech they were 157 and all these were received by Youtube. Likewise, for the content constituting religious offences the number was 160 out of which 146 requests were received by Youtube.

Justice Chelameswar responded back saying that immediately after receiving the take down request the ISP does not face prosecution. He has the option of removing it before prosecution.

Mr. Venugopal cited an incident where there was an alleged offensive content wherein it was expressed that the Quran is responsible for promoting hatred between different religions. A lady Judge who was on the verge of retirement issued take down notice because of which violence broke out in Srinagar in which 1 person lost his life. The Division Bench called for the file and set aside the take down notice. Mr. Venugopal pointed out that there was a lot of grey area in Section 79 and there is no adjudicatory body to look into these cases. He emphasised that reasons have to be stated for the take down notice. There should be an adjudicatory body which can initially order ex-parte temporary taking down of the content and thereafter can look into the matter to decide if the claim by the aggrieved party claiming the content to be offensive is false or true. He further contended that there has to be some application of mind while issuing notice of taking down as there is a huge extent available for abuse of this power under Section 79. He stressed that the internet is doing a great service. He said that the number of prosecutions does not matter that is to say even if the ISP is liable to be prosecuted and not actually being prosecuted still it has a chilling effect on free speech. To this extent the latter part of Section 79 violates Article 19(1)(g) of the Constitution. On this point he stressed that the matter is prejudged, take down notice is issued, no reasons are stated and there is no application of judicial mind. He expressed concern over the fact that the ISP or the intermediary upon receiving the take down notice cannot even give notice to the owner of the content being asked to be taken down. Hence, such owner is totally excepted.

Mr. Venugopal vehemently argued that Section 79(1) is an integral law. However, Section 79(3)(b) is violative of Article 19(1)(g) and Article 19(1)(a) and it is arbitrary and also violates Article 14 of the Constitution.

Justice Chelameswar was in agreement with the submission of Mr. Venugopal that the absence of a neutral adjudicatory body is a concern which must be addressed.

Mr. Venugopal said that how can someone summarily apply his mind and issue a take down notice.

With respect to Section 79(3)(b) Mr. Venugopal raised a question as to what is meant by actual knowledge. He said that actual knowledge is basically the information that a particular message is contributing in the commission of an unlawful act. He said that the ISP gets a letter saying that a particular message is unlawful and not that the Government has knowledge that it is unlawful. He stressed that no investigation is done and once such a letter is received the ISP is constrained to take the content off its platform. He argued that the owner of such content must be informed and be heard.

Mr. Venugopal again came back to the IT Rules. He again mentioned Rule 3(3) and Rule 3(4). Thereafter, he argued on Rule 3(2)(b) and said it is not mentioned in the rule as to to whom is the information harmful and to what extent? To whom is it harassing, how is it harassing and to what extent? He said the words mentioned in Rule 3(2)(b) are not legal terminologies. He contended with regard to the word blasphemous being mentioned in this rule as to what is blasphemous to one may not be so to another. Again, with respect to the word obscene used in this rule he contended that what is obscene to one person might not be so to another. He stressed that there has to be some safety valve for these ISPs.

Thereafter, the Bench rose for the day at 04:00 p.m. and the matter was listed for the next day i.e., 17th December 2014.

Mr. K.K. Venugopal at the outset he brought to the notice of the Bench that in the Taslima Nasrin matter i.e., WP (Cri.) 222 of 2013 closure report had been filed. As per the closure report the police did not even know as to what was there in the tweets of Taslima Nasrin. He submitted that despite this filing of the closure report the concerned Magistrate was disposing of the matter.

To this the Court directed the concerned Magistrate to dispose of the matter within 4 weeks from the date of the order i.e., 17th December 2014.

Mr. Venugopal thereafter, resumed his arguments in WP(C) 758 of 2014.

Mr. Venugopal responded to the question posed by the Bench on 16th December 2014 that does a conduit’s transmission of content of someone else constitute free speech of the conduit itself, by citing a full Bench decision of the Madras High Court in a case wherein Press Emergency Powers Act was challenged; the citation being AIR 1951 Mad. 70. He specifically referred to Paragraphs 4 and 10. He also cited another latest decision based on this judgment bearing the citation (2014) 9 SCC 485. He referred to Paragraph 36 on Page 505 of this judgment.

Thereafter, Mr. Venugopal discussed the scope of Section 79, IT Act. He contended that an intermediary communicates information and a receiver receives it. This process if seen as a whole constitutes a fundamental right of the intermediary to do this. He again pointed out that restrictions under Section 79 will have to be consistent with Article 19(2) of the Constitution.

Mr. Venugopal submitted that under Section 69-A, IT Act instead of blocking the whole page only the particular message should be blocked. He again expressed the concern over the fact that the Government will merely say that bring down a particular content and the ISP would be constrained to bring it down. He argued that if the ISP wanted immunity from being prosecuted then it had to comply with the Government’s order and take down the information on no reasons being given by the Government for doing so.

He again laid greater stress on his previous argument that Section 79(1) is in greater public interest. Without this provision no intermediary would dare to provide such a platform. An intermediary is an innocent party so far as content is concerned. Without the internet free communications of ideas and thought would not take place and the economy and the development of the country would collapse. He also argued that if freedom of speech existed without Section 79(1) then it would also exist with Section 79(1) being there.

Justice S.A. Bobde posed a question to Mr. Venugopal that what do the ISPs do in addition to transmitting the content? They merely transmit and that is all.

To this, Mr. Venugopal responded saying that the ISPs set up the infrastructure. Then, as per Rule 3 of the IT Rules they set out the terms and conditions. Then, these terms and conditions are informed to the users. Then, the users have to subscribe to these terms and conditions. Then, the users have to sign an online agreement by clicking on the tab which says ‘I Agree’.

To this, Justice Jasti Chelameswar on a lighter note responded saying that no-one actually reads these terms and conditions as they are quite lengthy and they simply click the tab which says ‘I Agree’.

Adding to this, Justice Bobde replied by saying that this is the technical aspect of how the ISP does it. He again posed the same question saying as to what is the contribution of the ISP to the content say a video hosted on its platform? He himself replied saying nothing. He further added that it may be delayed transmission but nevertheless it is still mere transmission only.

Mr. Venugopal clarified by responding that the ISP collects, stores and communicates the information. It is a fountain of knowledge. It is far more significant than newspapers, television, etc. It is a communicator of news, social events, etc. It plays a greater part than television, cinema, newspapers, etc.

Justice Bobde responded saying these attributes are of mechanical system and not of human being. He asked does the ISP choose what to communicate? He further said that ISP has a choice negative in character as to what to block.

Mr. Venugopal responded saying that the content automatically goes through, however, it is the ISP’s will to allow a subscriber to subscribe to its platform by imposing certain terms and conditions upon the subscriber and only after he agrees to these terms and conditions can the subscriber subscribe to the ISP’s platform. Mr. Venugopal further contended the ISP controls the entirety of the communication as it is thrown open to the public to object to such information which has been provided on the ISP’s platform. He tried to distinguish this system from the newspapers by saying that the newspapers may allow certain news items to be published in them and out of these the newspapers can delete some of the news items and latter issue a corrigendum and apology in the next day’s edition of the newspapers.

Mr. Venugopal argued that the IT Rules compelled the ISP to have a format of guidelines in the fashion as provided under Rule 3(1) and Rule 3(2). Mr. Venugopal in support said that to this extent the ISP can ensure that its subscriber complies with such rules.

Thereafter, Mr. Venugopal handed over copies of Google’s Terms of Service and Facebook’s Community Standards to the Bench as well as the other Counsels appearing in the batch of petitions.

Mr. Venugopal read out the Google’s Terms of Service to demonstrate that these Terms of Service are elaborate. Thereafter, he read out the Facebook’s Community Standards and contended that Facebook is a very important platform as it is a venue for social intercourse between friends, family, relatives, etc. He also handed over copies of Facebook’s Statement of Rights and Responsibilities to the Bench as well as the other appearing Counsels and read them out. On the basis of these documents he contended that there is a question of self restraint involved and it is practiced.

Mr. Venugopal contended that it was a far cry on the part of the Government to say that the ISP should take down whatever content the Government says that it should take down without giving reasons or else the ISP would lose its immunity as available to it under Section 79(1).

Mr. Venugopal contended that though there is no need for the Government to interfere but even assuming that there are areas where such interference is required then, it will have to be consistent with Article 19(2) of the Constitution otherwise no one will even be able to give adverse comments about the policies of the Government.

Thereafter, digressing from the main controversy the Bench and Mr. Venugopal discussed the system of internet and of blocking content in China and North Korea.

Mr. Tushar Mehta intervened and contended that the Government does not prohibit and Section 79 does not provide for restraining people from accessing information. In support of his submission he cited an example of OLX.Com and said that suppose a person picks up a profile photo of someone from her Whats App account or Facebook account and uploads it on OLX giving the caption “For Sale” and the husband of this lady brings this to the notice of the intermediary that is to say OLX.Com and OLX.Com does not take down such photo. Now in such a situation Section 79 says that if the husband of this lady initiates a criminal action then OLX.Com, the intermediary in this case shall not get the immunity provided under Section 79(1).

Mr. Mehta further contended that it is only after an aggrieved party initiates a legal action that the intermediary loses its immunity. However, the other defences of the intermediary are still available to it.

Mr. Mehta assured that the Government even remotely does not seek to restrain free speech by way of this provision and contended that Section 79 does not provide for any penal action.

Justice Bobde was in complete agreement with these submissions of Mr. Mehta.

Mr. Venugopal argued that Section 79(1) standalone has to be de-linked from freedom of speech. He contended that the Government controls as to what is done under freedom of speech.

Justice Bobde told Mr. Venugopal that what the latter part of Section 79 provides is that if there is some content on the ISP’s platform that any citizen or the Government finds objectionable and the Government issues a take down notice and if the ISP does not take it down then if a legal action is initiated by such aggrieved citizen or the Government, the defence available to the ISP under Section 79(1) shall no longer be available.

To this, Mr. Venugopal expressed helplessness and said that in such a case what does the ISP do as an intermediary with its user who is the owner of such alleged objectionable content.

To this Justice Bobde replied that this means that the ISP is only a bystander and does nothing.

Mr. Mehta reiterated by way of a recent example where a tweet was tweeted on Twitter which said that join the extremist group Islamic State of Iraq and Syria (ISIS). He said that in such a case the ISP may be sued as an abettor along with the owner of such tweet as the aggrieved party has its defences and similarly, the ISP as well as the owner of such tweet have their respective defences as well, its just that the immunity available under Section 79(1) to the ISP will be lost.

In agreement with the above Justice Bobde gave another example saying that A says on a social media platform that B is an illegitimate child. B takes strong objection to this as he claims that he is not an illegitimate child. B tells the ISP to take down this information. Now the ISP make take it down or may not take it down as it might agree or might not agree with A. Suppose the ISP does not take it down. Now B sues A and the ISP. In such a case the ISP shall lose the immunity and would not be entitled to claim that it is protected under Section 79(1). Whether it is B or the Government in this case it makes no difference.

Mr. Venugopal argued that if freedom of speech is involved in Section 69-A then it is also involved in Section 79. He contended that the amplitude of any restriction on Section 79(1) has to be traceable to Article 19(2) of the Constitution. He further argued that Section 79(1) is an embodiment of freedom of speech under Article 19(1) (a) and therefore, any restriction on Section 79(1) has to be traceable to Article 19(2).

To this Justice Bobde said that Section 79(1) is curtailed naturally that is to say legally. In support of this he said that some sections under the IPC curtail it and the tort of defamation curtails it.

In reply Mr. Venugopal argued that the IPC offences are traceable to freedom of speech and would be governed by Article 19(2).

Justice Bobde asked that are these not restrictions on Section 79(1)?

Mr. Venugopal responded saying that yes they are but they are permissible restrictions.

Justice Bobde asked Mr. Venugopal that did his argument mean that Section 79(2) raises the Bar and increases restrictions?

Mr. Venugopal replied saying that Section 79(2) provides for impermissible heads of restrictions. He contended that it provides for additional heads that are unlawful and what is unlawful is not known. He argued that there should be some method of judging that whether a particular message is objectionable or not. He argued that it cannot be that the Government while issuing the take down notice neither gives any reasons nor makes available any material.

To this, Justice Bobde said that a question arises as to balancing of individuals’ rights vis-à-vis the intermediaries’ rights. He further asked Mr. Venugopal that can an ISP throw up its hands and say that it has no responsibility as no material has been made available to it by the Government?

Mr. Venugopal contended that if any material is given then at least the ISP can consult its Counsel, give such material to its user who is the owner of the content and within two days revert back if the content is actually unlawful as claimed or not. He argued that the ISP should atleast have tools that is to say the material in order to adjudicate.

Justice Bobde asked Mr. Venugopal that as per him the ISP needs time to find out on the basis of the material. Who will give the ISP this material?

Mr. Mehta intervened and said that Rule 3(4) of the IT Rules gives such time frame and also provides as to what can be done by the intermediaries.

To this, Justice Bobde clarified to Mr. Mehta by way of an example that if a message is posted on the ISP’s platform about terrorist activities in a remote village then, how can the intermediary be expected to go there, investigate and bring the relevant material within 36 hours which is the time frame provided under Rule 3(4).

Justice Bobde also told Mr. Mehta that prima facie the intermediary must take responsibility and must know as to how to discharge that responsibility.

Thereafter, the Bench rose for lunch at 12:00 p.m.

After lunch, at 02:00 p.m. Mr. Venugopal referred to 3 reports which were filed in WP (C) 758 of 2014 to support his submissions in regard to actual knowledge and take down. He referred to the report submitted by the expert Committee appointed by UOI. He also relied on a report dated 8th June 2000 of the European Union on e-commerce to protect freedom of expression. He further referred to a report by the Lok Sabha Committee on Subordinate Legislation. This report also pointed out the ambiguity in Rule 3(2)(b) of the IT Rules to the extent that the grounds therein have not been defined anywhere in the IT Rules or in the IT Act.

Mr. Venugopal contended that enormous burden has been placed on the intermediaries as the basis of the take down notice is not given and therefore the intermediaries are not able to inform their users who are the owners of the content of such notice of take down.

Justice Bobde inquired that if it is known as to what all has been asked by the Government to be taken down but has not been taken down by the intermediaries and also what is such content which has been asked by the Government to be taken down but has not been taken down by the intermediaries.

To this, Mr. Mehta informed that the Government is in the process of compiling this information and he would place such material on record.

Thereafter, Justice Chelameswar pointed out that the immense speed and reach to media or online information has the ability to facilitate development as well as create nuisance. The standard of judging as what is objectionable and what is not, cannot be the same.

To this, Mr. Mehta contended that the Petitioners wanted free speech and the State was bound to protect it. He prayed that some guidelines maybe lay down by the Bench or if the Bench directs then the Government can also lay them down.

Justice Chelameswar clarified to Mr. Mehta that there can be dissent or criticism of the political activities or policies of the Government in power. Such criticism is allowed and citizens cannot be arrested because of criticizing the policies of the Government. He gave the examples of the Bombay and Calcutta arrests due to opinions expressed on social media. He also said that it would be better if the Government could lay down some statutory guidelines as they would bind everyone.

On this, Mr. Venugopal prayed that in these guidelines not only the ISPs or intermediaries but also the owners of the content who hold property in such content, must be protected. He also prayed that such owners should be given some quick response time within which they could respond to the take down notice issued by the Government.

Mr. Mehta raised the question as to what is annoying. Replying himself he gave an example saying that daily 5 mails are being received by lawyers from two lady litigants. This is irritating. But say someone starts receiving 500 mails or even 50 by someone else claiming that his wife is unchaste and that he saw her with someone else in a inappropriate position then, this will be what can be called annoying and it will surely have to be curbed by the State.

On this, Justice Chelameswar clarified saying that the real question here is as to how it is understood by a policeman.

Mr. Mehta assured that the State does not per se take adversarial action. However, if it is said that 2% of the exercise of one’s fundamental right to free speech is the abuse of such right then the State is duty bound to protect the right of free speech of the citizens but at the same time it has to curb such 2% abuse also.

Mr. Venugopal informed the Bench that draft guidelines have been prepared by Mr. Sai Deepak, Advocate.

On this, the Bench directed that these draft guidelines be exchanged with the other Counsels involved in the batch of petitions. The Bench also directed Mr. Mehta to draft their guidelines with consultation with the Government and exchange them with the other Counsels involved by 25th December 2014. The Bench clarified that if after such exchange there was some difference of opinion then the Bench would consider it. The Bench also gave liberty to all the Counsels to give suggestions as to these guidelines, if any. The Bench also emphasised that these draft guidelines should be discussed and reviewed only between the Counsels and not the parties as the Counsels would have a much better understanding of them from the legal point of view.

Thereafter, the draft guidelines prepared by Mr. Sai Deepak were handed over to Mr. Mehta and Mr. Shyam Divan, Senior Advocate.

Mr. Venugopal clarified to the Bench that these draft guidelines prepared by Mr. Sai Deepak were based on various reports.

The Bench said that even if these draft guidelines had no basis still they would be of relevance.

Thereafter, Mr. Venugopal referred to an article titled : Study on Liability of Internet Intermediaries dated 12th November 2007 authored by Prof. Dr. Gerald Spindler, a Professor at University of Nottingham

Mr. Venugopal specifically referred to Page 14 of this article which talks about the procedure for take down. A copy of this article was handed over to the Bench as well as to the other Counsels appearing in the batch of petitions by Mr. Venugopal.

The matters was listed for on 13th January 2015.

Notes of Proceedings- III: Rajeev Chandrasekhar v. U.O.I. & Anr., W.P. (C) No. 23/2013

Date: 10th December 2014

Rajeev Chandrasekhar v. U.O.I. & Anr., W.P. (C) No. 23/2013

Section(s) Challenged: S. 66A and the Information Technology (Intermediaries guidelines) Rules, 2011

Arguing Counsel: Mr. Sajan Poovayya

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

Mr. Poovayya stated his arguments by stating that the restrictions imposed on speech under s.66A are beyond the narrow and stringent limits that have been set for abridgement of the right of freedom of speech and expression under art. 19. He stated that the limitations created by s.66A are beyond the permissible limits set under art. 19(2). However, Mr. Poovayya did not expand upon his argument as he stated that lawyers who argued before him have already put this argument forth.

Mr. Poovayya submitted that s.66A has three sets of standalone offences under 66A(a), 66A(b) and 66A(c). He stated that 66A(b) may have some rationality to it as a mental element and knowledge has been brought in. In cases of 66A(a) and 66A(c) he again stated that they by themselves create standalone offences and therefore communication with no intent or knowledge is criminalized within the ambit of the section. Mr. Poovayya then read 66A(a) and 66A(c) as they would apply dehors 66A(b).

He provided an example and stated that if he were to call someone over a telephone and make a communication orally and say that a person’s style of functioning is not well or make some communication which is unpleasant and that person is annoyed, no charge can be brought under the IT Act and even possibly under IPC as causing offence is not a chargeable provision under the IPC. But if the same communication in its entirety as words is sent by his cellphone by virtue of a text message, it will be a crime under 66A(c). J. Chalmeshwar pointed out that even oral communication over the phone including VoIP calls can be brought under this. Mr. Poovayya agreed and stated that the same activity undertaken by a different medium cannot be criminalized in one medium and not in the other. He gave another example and stated that he may have sent an email to a politician stating what he has done is wrong. The email may be annoying whereas the same thing said in an open letter, which is reported in a newspaper will not fall within the ambit of 66A(c) but the email will by virtue of being sent through electronic medium.

J. Chalmeshwar asked Mr. Poovayya to clarify the distinction between 66A(a) and 66A(c) as 66A(a) talks about any information and 66A(c) about information carried through a mail. Mr. Poovayya stated that in terms of the information that a particular mail or a transmission will carry there is no distinction between 66A(a), 66A(b) and 66A(c). However, the distinction between these three are broadly in two sets. 66A(b) is a standalone provision. To this the bench asked Mr. Poovayya to distinguish between 66A(a) and 66A(c) and that they will take up 66A(b) later. Mr. Poovayya stated that the distinction between 66A(a) and 66A(c) is that the nature of the result that the communication may have on the last person or anybody who reads it.

J. Chalmeshwar then pointed out that 66A(c) contains the words ‘for the purpose of’ and thus there is some mens rea. Mr. Poovayya agreed and said that it atleast some indirect element of men rea that I must have the intention that I am sending it to annoy you and 66A(a) is irrespective of whether its menacing to me or anyone else.

Mr. Poovayyas then stated that under 66A political satire or criticism of a authority can be stifled in the country. He stated that dehors where I come from, dehors in what manner is the communication put, dehors in what circumstances the communication emanated. Dehors all of it there is criminality under s.66A. The words grossly offensive and menacing are based on the mental subjective satisfaction or determination of the recipient rather than any other community test. He further stated in a SCOTUS case, even a community test cannot be attributed and it must be a statutory test. He stated that there must be ingredients for what is menacing so that a person may conduct or govern himself in manner to not do that, otherwise the law as it stands today effectively tells a person that he can speak but not send an electronic communication to anybody. J. Bobde stated that the difference between 66A(a) and 66A(c) seems to be that 66A(a) need not be through a mail.

Mr. Poovayya then provided the Court with the historical context of the Internet starting with passive Internet or Web 1.0 where it was a medium to store information and medium to communicate and disseminate information. He then moved onto Web 2.0, in which he stated the web stopped being a passive medium and became and interactive medium by which one can communicate to one or one to many or many to one. This lead to the emergence of social networking site since Internet graduated towards secondary form of governance mechanism in Web 2.0.

He took an example of a social networking platform where a person puts some information on a page about a movie actor. That comment is not a one to one communication will fall under 66A(a) and not under 66A(c), since 66A(c) speaks of electronic mail or electronic mail message. The words electronic mail and mail message take care of both Web 1.0 and Web 2.0 because 66A(c) can cover communication which is one to one or one to many for example in a closed user group. 66A(c) in traditional sense takes care of some commination that I disseminate knowing who the recipient is.

Mr. Poovayya then explained the concept of a ‘spam’ to the bench stating that it is an unsolicited electronic message typically emerging from a single source but meant to be disseminated to multiple sources. It is unwelcome, unsolicited and typically in a form of an advertisement. He then explained the concept of phishing to the bench. He then stated that both these instances are covered under 66A(c). He submitted that 66A(a) and 66A(c) may interoperate to a large extent and same message may fall under both the provisions. J. Bobde observed that 66A(a) will include 66A(c) but it may not be the other way around. Mr. Poovayya stated that in case a person sending a mail has not intention of causing annoyance but if the mail is offensive it will be covered by 66A(a). Mr. Poovayya then submitted that under 66A(c) there are two different offences:

  • Any person who sends, by means of a computer resource or a communication device any electronic mail or electronic mail massage for the purpose of causing annoyance or inconvenience.
  • Any person who sends, by means of a computer resource or a communication device any electronic mail or electronic mail massage to deceive or to mislead the addressee or recipient about the origin of such massage

He then submitted that the second part deals with the issue of phishing.

Mr. Poovayya then stated that the law is not proportional. He stated that if a person is initiating a threat or intimidation he may be covered under IPC for which the maximum punishment can be 7 years. If a person sent a communication, which is defamatory, the punishment under IPC is a maximum of 2 years. He stated that 66A brackets the entire spectrum of sentence of similar offences under IPC in a 3-year sentence and this is disproportional.

J. Chalmeshwar stated that a person speaking something on street corner and that being heard by a limited number of people may be very different than a person posting something on the Internet. J. Bobde observed that were these sections enacted because there is some different way of committing these offences over the Internet.

Mr. Poovayya the provided the background of the enactment of the Act and stated that once the law was promulgated it was found out that it did not cater to many aspects and therefore in 2006 a committee was established to draft certain amendments which pertained to e-commence and criminality in terms of identify theft and phishing as financial transactions started taking place over the Internet. It was not constituted to draft offences for activates over the Internet as they were very different from activity in the physical world. When the bill was to be tabled in 2006 a standing committee of the Parliament stated that the bill should not be tabled as it way beyond its scope. It was sent back to Deity. Subsequent to this the terrorist attacks in Mumbai took place in November 2008 and subsequent to this the amendments were made.

He submitted that these amendments to offences were made as a basket however s.66A stands out among all these. Mr. Poovayya read various other provisions of the Act including ss. 66B, 66C, 66D, 66E, 66F and stated that all of these require intent and have safeguards and are clearly defined. S.66A when juxtaposed with other sections clearly demonstrate the vagueness in it. He then stated than when a law criminalizes speech over the Internet a person should at least know what is reasonably allowed over it and what is not.

Mr. Poovayya agreed with the observation of the bench that the absence of mental element cannot by itself be a ground to challenge the validity of a provision, however, as a citizen if there is no mental element the citizen should know the limits till which he can exercise his right.

J. Bobde observed that the s.66A(a) makes mere sending of information an offence and the asked whether mere sending involves mens rea in relation to a particular person aggrieved. He further asked what is the status of men rea vis a vis the messages which are without an addressee. He further added that under the section it’s not even necessary that the message is received, the moment the message is sent the offence is committed.

Mr. Poovayya explained the technological aspects and stated that 66A(a) captures the multilayer user structure of the net. He stated and in a single layer structure there is one person communicating to another, whereas, in a multilayer for example a person uploads someone on a Facebook page, even though the recipients are not denoted, everyone in the person’s network gets those messages. J. Bobde observed that since mere sending is an offence there need not be mens rea against certain individual person except the subject of the matter and said that this is akin to putting up an obscene poster at a street corner. The ASG stated that there are various cases where people receive malware and other mails with viruses and mere sending of such is an offence and this was the intention behind the provision. J. Chalmeshwar then referred to the provision of negligent driving and said that this is somewhat similar provision in which no mens rea is required. Mr. Poovayya stated that in that case atleast there was a clarity that I knew that if I was driving I might endanger lives.

Mr. Poovaya stated that in no jurisdiction of the word has a private communication from an electronic mail which is one to one has been criminalized. Mr. Poovayya stated that in US and UK what is criminalized is sending something offensive in a public communication system.

Mr. Poovaya then stated that his submission on 66A is that a combination of vagueness and element of just actus reus. He further added in western hemisphere when such offences are criminalized they are summary offences and punishment is a maximum of 6 months or fine. In our case it is sentence and fine. These offences in virtual domain make no sense to a human beings to determine their conduct.

Mr. Poovayya the stated has his second argument is on a statute of some similar nature and he has to make that since he was unable to locate any pari material provision anywhere. The question that came up in America was whose standard should be used to test whether the information is annoying or offensive etc. Mr. Poovayya refereed to the case of Reno v. ACLU. Mr. Poovayya added that the act in Reno was one step better than 66A as there was a threshold of indecent message. The US Act stated that the standard to be used to test for patently offensive will be a community standard however, under 66A there is no standard and the only standard is of the recipient or the complainant. He referred to parts of the judgment where it was held that the terms indecent and patently offensive were so vague that the criminal enforcement of either section would violate fundamental rights. He referred to the terms under s.66A and stated that unless these are defined these are completely open ended and prone to abuse. If as a citizen I am not aware of the limits placed, I am choose not to speak at all and the law will silence speakers whose messages have constitutional protections. A political satire has constitutional protection but I may choose not to say that as the statute is vague and do not know what consequence will follow.

Mr. Poovayya stated that courage and bravado starts from certainty and if a person knows that he will be violating the law that is bravado but in case where the person does not know he will tread very carefully and will be considered weak. He then referred to the part of Reno where the community standard was struck down. He stated that in case of the Internet your audience is the entire country so which community standard would be applicable. J. Chalmeshwar asked whether when the audience is the entire nation should the standard not be that of the community most likely to be offended by such message.

Mr. Poovayya stated that vagueness would be looked at with a far greater benchmark when it comes to Internet activities as the target audience is so varied that unless a statute specifically states that a person will do certain thing and no do certain thing it will be violative. J. Bobde stated that one view can be that since its known that the audience over the Internet is so wide that a person should be careful to not offend anybody. Mr. Poovayya replied saying that, that is exactly what is chilling effect and will lead to censorship. J. Bobde stated that the petitioners are equating speaking as offending. The law as we understand says do not offend people and there is absolutely no cap on anyone speaking whatever they want. The only thing is if it can be offensive and if a person knows that there are people of different sensibilities, the person should make sure that she does not offend anybody and this is a part of living peacefully. J. Bobde said if suing words a person can use safer words which won’t offend anybody. Mr. Poovayya replied that Roscoe Pound state that law is minimum morality but in this case the law cannot tell me to use the safer words, if I do not want to. J. Bobde stated then such words should be used against person who does not mind to which Mr. Poovayya replied that the problem is that the recipient in a lot of cases is not known over the Internet. J. Bobde stated that please do not equate s.66A with a law that silences, it does not stop any person from saying anything to which Mr. Poovayya replied that the law chills the person, to which J. Bobde stated that it chills you only to the extent of saying something offensive. Mr. Poovayya replied saying that that particular thing may not be offensive by his or his community standards and the problem is that what is offensive is not defined.

J.Bobde stated that on the Internet a person is addressing the entire world community and someone who is speaking at the U.N. needs to be more careful in choice of her words than someone who is speaking in her drawing room. J. Bobde further added that this is a vexed issue and in all the arguments one thing that he has observed is that the injunction to be careful is being read as an injunction to be quiet. He again stated that this is not a law, which silences anyone, and the bench is sure of that and it may be a law which discourages certain kind of speech. Mr. Poovayya as a response to J. Bobde’s remarks stated that the fact that a person will be expected to speak in language which is not offensive to anyone comes to the common minimum denominator and the person has to see whose tolerance limit is the least and then cater speech according to that. J. Bobde enquires whether that does not happen and Mr. Poovaya relied that that is not free speech guaranteed by the Constitution.

J. Bobde stated that free speech does not mean freedom to say whatever a person wants. If certain laws (eg: defamation, contempt of court) require a person to be careful that is not violative of free speech. Mr. Poovaya stated that under 66A(c) one of his major concerns is the use of the term inconvenience and stated that it will always be inconvenient for someone to hear their criticism. Justice Bobde stated that menacing is not vague and it means is instilling fear without a direct threat to a person and everyone understands menacing. He further added that everyone knows what is offensive language. There are certain things which are offensive to every person. Mr. Poovayya stated that in Reno the term patently offensive was held to be vague and on what standard it is to be judged. J. Bobde replied stating that there are different standards and that SCOTUS was dealing with its own case. Mr. Poovayya stated that for his standard he might use the best possible language however someone in Lucknow might find it to be offensive and he will be booked under the provision.

Mr. Poovayya stated that his next submission is that the response of state time and again has been that these are one off cases of arrest, however that is not the intent of the statue. The statue was initially brought to cover malware, viruses etc.

Mr. Poovayya refereed to s.66 and s. 43 of the Act and stated that each of the offences which otherwise IPC does not cover since certain activates happen only in the virtual world have been covered by s. 43 and s.66 as rest of the offences take place both in virtual and physical world and are covered by IPC.

Mr. Poovayya stated that s.66A is an afterthought and the establishment   does not like criticism on the Internet. He stated that a Government can control newspapers or physical demonstrations but cannot stop criticism over the Internet and the only way is to criminalize speech over the Internet and in the present case a person will not say anything because she is not aware of the extent of the restriction and does not know what is wrong.

J. Bobde stated that people receive menacing or threatening calls, however they cannot stop it since the number is located in a place, which is beyond the reach of the national authority. The ASG stated that for most of cases the IP address of the content is shown in obscure place and a person cannot be traced and the only remedy can be to block it. He further stated that most of the foreign units of intermediaries or service providers do not cooperate and do not give information. Mr. Poovaya said that blocking is a completely different sphere as compared to free speech of an Indian citizen and it is not a case where the message is coming from a proxy server in Russia. The ASG replied saying that the offensive message can come from a proxy server in Russia. To this Mr. Poovayya stated that criminalizing speech does not help in any way as that message will still come from the proxy server and this does not take care of that.

J. Bobde inquired whether in case where an Indian citizen uses a server in another country to send messages to another citizen, can such message be stopped. Mr. Poovayya stated that today the technology is such that any proxy server can be identified and that the CERT in India is possibly the best as compared to the others around the world. Mr. Poovayya stated that proxy servers in the first instance cannot be identified however, everyone computer has an IP address, which is similar to the IMEI number in a mobile. He further added that the mere fact that there is difficulty in technology to identify who the culprit is that does not give room to criminalize speech.

Mr. Poovayya said that the law per se when it says you will not do certain things is not a silencer law as such but criminalizing such speech silences speech. He added that the essence of free speech is the fulcrum of democracy. He added that free speech is not inconsistent to restriction on it under art. 19(2).

Moving to his last submission Mr. Poovayya added that a mere fact that the State has issued an advisory that no arrests must be made under Section 66A without the prior approval of a senior police officer, does not cure the vagueness or the invalidity of the section. The threshold with which the constitutional validity of provision is tested is looked at from what the statute says. It cannot be that the statute is invalid but operated in a valid manner. He referred to the case of Collector of Customs, Madras v. Nathella Sampathu Chetty.

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.

Notes of Proceedings- I: Shreya Singhal v. Union of India, W.P. (Crl.) No. 167/2012

The final arguments in the set of Shreya Singhal cases which challenge the constitutionality of various sections of the Information Technology Act, 2000 case were being heard by a Supreme Court Division Bench comprising Justice  J. Chelameswar and Justice S.A. Bobde.

Over the next few days we will be publishing our notes of the proceedings.

Date: 9th December 2014 

The Assistant Solicitor General (ASG) Mr. Tushar Mehta informed the Court that they have filed the reply in the lead petition (Shreya Singhal) and certain connected matters. However, since there were a number of connected matters, they will need more time to go through those and file replies.

Subsequent to this the ASG handed over a number of documents in a sealed envelope to the bench and requested the bench to pursue the material that has been blocked. The lawyers of the petitioners objected to not being given a copy of the same.

Subsequent to this, the bench see to have quickly saw the material and asked the lawyers to start the arguments.

The ASG stated that the petition and the challenges to s. 66A are based on some stray incident and abuse of power. To this J. Chalmeshwar replied saying that the abuse is ‘egregious’ and should be checked. The ASG clarified that the Government is not justifying the abuse.

One of the lawyer for a petitioner pointed out that for banning a book a notice under CrPC has to be provided, however when the e-book of the same is to be banned no such requirement is there. The ASG also stated that though some of the petitions were genuine some of them were not so and that there was ‘shadow boxing’ by some social media sites.

Subsequent to this Mr. Soli Sorabjee started his arguments in lead matter of Shreya Singhal v. Union of India, W.P. (Crl.) No. 167/2012

Shreya Singhal v. Union of India, W.P. (Crl.) No. 167/2012

Section Challenged: S. 66A of the IT Act

Arguing Counsel: Mr. Soli Sorabjee

Mr. Sorabjee’s written submission can be found here.

Mr. Sorabjee started with the legislative history of the IT Act. He stated that the Act was enacted in 2000 and read out the preamble of the Act stating that the purpose of the Act was to provide legal recognition and encourage e-commerce and to give effect to a United Nations General Assembly resolution A/RES/51/162 on the Model Law on Electronic Commerce.

Subsequent to this Mr. Sorabjee drew the bench’s attention to the original Act of 2000 and went to various sections including S. 66 and 67. He then read out sections 66E inserted through the amended act and stated that there was no issue with it since it was covered by Article 19(2) of the Indian Constitution.

Mr. Sorabjee argued that section 66A of the Act was not covered by Article 19(2). He stated that though he agrees that no right is absolute, however for a restriction under Article 19(2) three prerequisite must be there:

  • There must be a law
  • The restriction must be under one of the grounds specified under Article 19(2)
  • The restriction should be reasonable and not vague

He referred to the case of Sakal Papers [1962 (3) SCR 842] to put forth his point and read out paragraphs from page 868. He stated that the terms under s. 66A were vague and nebulous.

Referring to the documents provided in sealed cover at the start of the hearing, Mr. Sorabjee stated that even if after the perusal of the content of these documents it emerges that these are in the interest of general public and s. 66A is used in the interest of general public, this will still not be enough for the restrictions as interest of general public is not a ground under art.19 (2). He referred to the cases of Romesh Thapar and R. Rajagopal.

J. Chalmeshwar pointed out that on a bare reading of the section under 66A (b) the information must be false and the person sending it should know it is false and the information should be sent persistently. If the information is true this does not allow and a stray instance of sending such information may not attract this.

Mr. Sorabjee stated that the terms used in the section are vague and stated by an example that if some minister is not carrying out his duties properly and someone points that out, that may be grossly offensive to the minister. To this J. Chalmeshwar observed that what is offensive is a matter of value judgment and same speech can have different meanings in different context.

J. Chalmeshwar then asked Mr. Sorabjee if grossly offensive could be brought under the decency head found in art. 19(2). Mr. Sorabjee stated that we cannot stretch the grounds provided and the Freedom of expression should be preserved and given the widest amplitude. J. Chalmeshwar asked what’s the meaning of decency under 19(2)? To this Mr. Sorabjee replied that it the standard of reasonable person in a society to which J. Chalmeshwar agreed. J. Chalmeshwar subsequently stated that whether any reasonable man will come to a conclusion whether particular information is grossly offensive or not is an individual choice but can just on that count can we say that the provision is unconstitutional? Mr. Sorabjee pointed to s. 67 of the Act and stated that decency and the said section can cover obscenity. To this J. Chalmeshwar stated that then we need to look whether ‘grossly offensive’ as provided has any meaning and is supposed to cover any acts which are beyond the scope of S. 67. Mr. Sorabjee stated that there is no objective standard and what is grossly offensive depends on person to person and in this case on the opinion of a statutory authority. J. Bobde stated that it depends on the statutory authority only for the purpose of initiating the proceedings however the final decisions is with the courts whether the person is guilty or not. Mr. Sorabjee stated that in that case there will be a chilling effect.

J. Chalmeshwar stated that supposed that the law (s. 66A) is declared unconstitutional, then if a person gets an offensive message everyday, nothing can be done about it. Mr. Sorabjee said if a statement is offensive without being indecent or lascivious it falls outside the scope of Art. 19(2). J. Clameshwar said that a lot of statements can be offensive without being indecent and Mr. Sorabjee replied that then it is outside the scope of art. 19(2).

Moving on to s.66A(b) Mr. Sorabjee stated that the terms are very vague and subjective. J. Bobde stated that under IPC what is punishable is intimidating message sent from one person to another and on the Internet what seems to be a problem is that these messages are not sent to a particular person lot of times. Assuming that a message if a general threat to a community, then a person cannot go under IPC because the authorities will say that it is not directly targeted to you. Mr. Sorabjee that it is already covered under s. 153A IPC. J. Chalmeshwar stated that IPC states whoever by words written or spoke and does not talk about electronic communication.

Mr. Sorabjee stated that IPC has been interpreted in such a way. He then stated that his main issue with the words grossly offensive and J. Chalmeshwar observed that people in power get annoyed very fast. Mr. Sorabjee stated that this section can be used to have serious political censorship. Mr. Sorabjee then read out the meaning of some of these terms from the Dictionary and stated that there cannot be these vague expression to have restrictions on free speech. J. Bobde stated that based on these vague terms you cannot make criminal offences; these might be unpleasant words however you cannot punish a person under this. Mr. Sorabjee stated that no offence should be there for such terms but definitely not criminal offence. J. Chalmeshwar observed that if a person does not have a sense of humor then even a cartoon can be offensive. Mr. Sorabjee stated that I might have a certain opinion that you may find very unpleasant and offensive.

Mr. Sorabjee then refereed to certain cases of vagueness. State of M.P. v. Baldeo Prasad, 1961 (1) SCR 970 and referred to pages 970 and 979. The case dealt with a section, which provided powers to police to detain ‘gunda’, however the court held who is a gunda is very vague. He then referred to the cases of Harakchand Ratanchand Banthia v. Union of India, 1969 (2) SCC 166 and K.A. Abbas v. Union of India, 1970 (2) SCC 780 and SCOTUS case of Burstyn v. Wilson, where he read out parts of the concurring judgment of J. Frankfurter.

Based on a query by the bench Mr. Sorabjee stated that this section is applying censorship. He the stated that there have been various instances in which the section has been applied in an arbitrary manner and the vagueness is inherent in the said section. He then gave certain examples including of Prof. Mahapatra in Kolkata, the Pahalgar arrests, the Hudhud cyclone case.

He the stated that the said Section has a chilling effect on freedom of speech and expression and is thus violative of art. 19(1)(a). Mr. Sorabjee then explained the concept of chilling effect and cited two cases (R. Rajgopal v. State of Tamil Nadu, 1994 (6) SCC 632; S. Khusboo v. Kanniammal, 2010 (5) SCC 600) in which the Supreme Court has recognized this concept in India. He stated that self censorship is absolutely detrimental to a democracy.

He also stated the case of Cricket Association of Bengal to state that freedom of speech also includes the right to receive information and this has great significance in a country like India.

He concluded that the impugned heads of s. 66A cannot be served and are inextricably linked with other provisions of the said Section, however he would not present detailed arguments on this and leave it to the bench. He also stated that there are sections in IPC, which take care of all the offences under IT Act. J. Chalmeshwar stated that that would require a wider debate and each of those sections will have to be examined and seen whether it meets the requirement of electronic communication and if the petitioners are serious and want to argue that submission the Court will like hear them in detail. J. Bobde stated that another questions which needs to be looked into is whether IPC was found inadequate to deal with these issues and that is why the offences were made under the IT Act and whether this is a special situation which cannot be covered under IPC. Mr. Sorabjee stated that if such is the case then also these grounds should be brought under at. 19(2). J. Clameshwar gave the example of the Dramatic Performances act and stated that visual/spoken expressions might require a certain different and special law.