Section 66A of Information Technology Act 2000 as amended in 2008 was struck down by the Supreme Court of India on 24th March 2015 in a judgement delivered by a two member bench consisting of Justice J.Chelameswar and Justice R.F.Nariman. The Court was hearing a batch of petitions from several petitioners who were victims of cases in which Section 66A had been used by the Police.

On the face of it, the Judgement said that Section 66A was violative of the constitutional provision of guaranteeing the “Freedom of Expression” under Article 19(1) and not coming under the exceptions provided under Article 19(2).

But on proper examination of the verdict, one wonders whether the Court had based its verdict on a wrong premise that Section 66A was written into the law to curb freedom of speech by the legislators and had to be discarded by the Court to protect democracy in the country.

After the verdict, motives were attributed to some members of the previous UPA  Government that they brought in the legislation to protect their leaders and BJP MPs did not object since they also wanted to use the section when they came to power as if in 2008 as if there was a visionary who had predicted that BJP would come to power in 2014. Suddenly the politicians who had earlier misused the law repeatedly started praising the decision and the current Government had to face the criticism of the media as if they were responsible for the curbing of freedom of speech since they did not withdraw the legislation on their own.

All these postures of politicians, media persons as well as some advocates who could be considered as experts in constitutional law, and many others who simply wanted to sound politically correct, displayed that they had no understanding of why and how the provision was legislated and lacked conviction to say that Supreme Court can also go wrong.

If Courts can never make mistakes, then there would be nothing called “Appeal” or “Review”.

Hence we feel that there is nothing wrong in stating that this judgement was erroneous, not based on proper interpretation of the intention or real meaning of words used in the section.

In one sentence we can say that a section meant to address “Messages” was applied for “Publishing” and held guilty.

This is like hanging a person believing that he had murdered another person when the person he is supposed to have murdered is not dead at all.

What is interesting as an academic exercise is to observe the reasoning of the Court in arriving at the decision.

The most potent argument that has been used to declare Section 66A as unconstitutional is that

a) It is applicable to “Information” and all information that is disseminated over the internet is included within its reach. This conclusion has been reached because the definition of “Information” under section 2(v) is all inclusive. Judgement also says that the definition of “Information” is oblivious to the “content”. Hence the Court concludes that “Petitioners are correct in saying that the public’s right to know is directly affected by Section 66A”. (para 20 of the judgement, copy of which is available here).

b) The judgement also states “That such information may cause annoyance or inconvenience” to some is how the offence is made out. The para goes on to make lofty discussions on what is “discussion”, what is “advocacy” and what is “incitement”.

The Court categorically states “The petitioners are right in saying that Section 66A in creating an offence against persons who use the interent and annoy or cause inconvenience to others very clearly affects the freedom of speech and expression of the citizenry of India at large in that such speech or expression is directly curbed by the creation of the offence contained in Section 66A”

We are left wondering where from the Court found validation for these statements in the wordings used in the section.

First of all the title of the section in bold says “Punishment for sending offensive messages through communication service, etc” and in the first line it is reiterated  that the section refers to what a person“sends”. Again, the first lines on sub section (a) and (b) talks of “any information” and in line 1 of sub section (c) it talks of “any electronic mail or electronic mail message”.

In these lines,

where did the petitioners and the Court saw “All Information”?

I am left wondering if my eyes are cheating me or the petitioners simply bluffed through their arguments and the Court was willing to be bluffed.

Though I am not a constitutional expert, I wonder how the petitioners and the Court can equate “any information which is sent by means of a computer resource or a communication device” to another person becoming a public speech qualifying for right to  “Freedom of Expression”?. It appears to be a laboured and contrieved extension of the meaning of “Expression”.

Just as the Court distiguished “Discussion”, “Advocacy” and “Incitement”, was it not fair that the Court should have seen the difference between a “one to one communication” vs “one to many communication” and “messaging” vs “publishing,” whether a “Tweet” is “Publishing” etc.

The Court seems to have been too eager to latch onto the petitioner’s views and regrettably gave a stamp of authority in the judgement to declare that Section 66A adversely affected the Freedom of Expression as guaranteed in the constitution. This appears to be an error though the judgement looked fantastic for media to hail “Indian Democracy saved by alert Judiciary”… etc

…To Be Continued

Naavi

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