The recent Supreme Court judgement in the case of Shreya Singhal Vs Union of India which resulted in the scrapping of Section 66A of Information Technology Act 2008 has opened up a debate on whether a specific remedy for E-Mail/SMS/MMS harassment was required in India and going ahead whether the Supreme Court should be requested to review the decision.
The scrapping of Section 66A by the Supreme Court was attributed to the mistaken impression that the section caused the wrongful punishment to persons like the Cartoonist Assem Trivedi, Professor Mahopatra, the Face book users Shaheen and Ritu (Palghar girls), the Twitter user Ravi Srinivasan and infringed on the “Right to Freedom of Expression” guaranteed under our constitution under article 19(1).
When a Court arrives at a judgement based on a mistake of fact, there is a duty on the Court to correct its erroneous judgement. Such correction can be done by the Court recalling its judgement or a review being undertaken by another larger bench of the Court.
While it is admitted that Section 66A was often used to book cases to harass Facebook and Twitter users as well as Bloggers, it must be said that such cases were the result of political interference in law enforcement. In most of these cases, the lower magistrate courts failed to provide immediate relief but the higher courts did provide relief when the cases reached them.
It must however be recognized that there are many other genuine instances when people and specially young girls were harassed by E Mail or SMS messages which resulted in complaints being filed with the Police and relief obtained many times even without further proceedings in a Court.
Presently there is a wrong perception in the Internet world that “Harassing over Twitter and Facebook” and “Trolling” is an acceptable behavior and has the sanction of the Supreme Court of India as a “Freedom of Expression”. If this perception is not corrected, the Internet will continue to become a law less jungle.
After the Supreme Court verdict, the media has vociferously come in support of the decision hailing it as a “Land Mark” etc. Such glorification of the judgement was a result of ignorance on the part of the media anchors besides the general respect and trust one has on the highest Court in the country.
However, one section of the Cyber Law observers in the country including the undersigned have been categorical in coming to the view that the Judgement is doing more harm than good. It is felt that “Scrapping” of the section instead of “Reading it down” or “Guiding the Government” to clarify the section with examples inserted into a notification was an unnecessary excessive reaction from the Court borne out of the mistaken belief that the section 66A indeed hurt the right to freedom of expression.
It is proposed that the discussion and debate in this regard should continue and the truth about Section 66A should be brought out. Though the Government has an option to bring back the legislation through an amendment, it is considered that this is a long drawn process and just as the land bill , it will be mired in all sorts of controversies in the political world and will take a long time to see light. Hence the option of seeking a review of the judgement is considered a plausible solution. After all we are trying to establish certain basic principles of law making such as “What constitutes vagueness in law” and “Whether vagueness in law” or “misapplication of law by Police” is a sufficient ground for scrapping of a statutory provision, “Whether the Supreme Court came to a wrong conclusion based on a misrepresentation by the petitioners that Section 66A referred to “Internet Speech” instead of “Messaging through electronic documents” etc., and such a decision needs to be examined by a larger bench of the Supreme Court.
In this connection some of the organizations engaged in Cyber Law Advocacy are contemplating a seminar to be held either in Chennai or Bangalore. In this connection, I seek information from the public on instances of harassment they have come across in recent times with the use of E mails, SMS/MMS/WhatsApp etc. I request even members of the police from different states to inform us about cases filed under Section 66A. (We believe that most of these cases are genuine cases not prompted by political influence). I also seek comments from professionals on the suggestion of a seminar as proposed.
Kindly send your views to the undersigned through e-mail or otherwise.