10 Questions on Section 66A Judgement for which we seek answers

In the light of the momentous decision of the Supreme Court of India , striking down Section 66A of Information Technology Act 2000 as amended in 2008 (ITA 2008) in its judgement dated 24th march 2015 regarding the set of petitions led by Shreya Singhal Vs Union of India, several questions arise in the minds of ordinary persons like me. I wish I will have the answers from all the experts in the field.

The 10 questions  I pose are as follows:

Question 1

Do  the words used in Section 66A not clearly indicate that the section was meant to address “Messages” as different from “Publishing”?

Question 2: 

Do the Titles used in Section 66A and others  not give meaning as to the legislative intent of the law?

Question 3

Should “one to one message” be a Concern of the Constitution as regards “Free Speech”?

Question 4 :

 If Section 66A goes, are there other sections to protect genuine Victims and are they equally effective?

Question 5

Will this decision to remove Section 66A encourage more Cyber Crimes?

Question 6

Is Our Cyber Law Framework Capable of supporting the Digital India?

Question 7

Did the Court abdicate its responsibility in refusing to read down and clarify the legislation? 

Question 8

Is “Vagueness” in legal drafting capable of being eliminated? 

Question 9:

Have we now created a “Precedent” which is undesirable?

Question 10:

Should not  the Supreme Court  take up a suo moto review of the decision?

The questions have been elaborated with my opinion below.

I want all the media to specifically debate this issue and let the Citizens decide if their rights have been specially protected by the striking down of Section 66A or the country is  under some hallucination.

Question 1: Do  the words used in  Section 66A not clearly indicate that the section was meant to address “Messages” as different from “Publishing”?

The Section 66A has

i) A title “Punishment for sending offensive messages through communication service, etc”

ii) First para of the section says “Any person who sends…”

iii) Sub clause (b) refers to a” communication device”

iv) Sub clause (c) refers specifically to electronic mail or electronic mail message

It is therefore clear that the section is meant to address the act of sending messages using either the e-mail or a mobile phone. Any other inference is deliberate and preposterous.

Question 2: Do the titles used in Section 66A and others  not give  meaning as to the legislative intent of the law?

In contrast to Section 66A, Section 67, 67A and 67B uses the words “Punishment for publishing or transmitting obscene material in electronic form”, Punishment for publishing or transmitting of material containing sexually explicit act,etc. in electronic form” and  “Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form”

My Opinion on the above two questions is as follows:

In my opinion, the law distinguishes “Publishing” and “Messaging” distinctly. Section 66A refers to “Sending of Messages both on the Internet and through the Mobile”. Section 67, 67A and 67B refers to “Publishing” and “Transmitting” but applies only to what we understand as “obscene”.   If “Transmitting” is same as “Messaging”, we may say there is an overlap of Section 67, 67A, 67B (Note 67B has a wider application which includes viewing etc) with 66A and we can infer that the legislators intended to apply Section 67 for obscene messages and 66A for those messages which escape Section 67 but cause annoyance etc.

The Court made a mistake in not recognizing this essential difference between Section 66A and other sections related to Facebook, Twitter or Blog publishing to which all the cases of the petitioners before the Court addressed.

It surprises me that though none of the cases of petitioners actually comes under Section 66A, the Court was led to believe it was so and more surprisingly the Court went by this erroneous representation and based its judgement on that basis. It not only accepted the petitioner’s representations in this regard that Section 66A refers to any information placed in the Internet, it reiterated it in its own words stating

”  It is clear, therefore, that the  petitioners are correct in saying that the public’s right to know is directly affected by Section 66A. Information of all kinds is roped in – such information may have scientific, literary or artistic value, it may refer to current events, it may be obscene or seditious.”

This is completely erroneous. Every piece of law has to be seen in the context in which it is meant to be applied and not in an unrelated context.

Having indicated as above that the foundation of the judgement itself is wrong, there is no further argument that is necessary to state that the Judgement has to be reviewed preferably by the Court itself.  There should be no need for the Government/or any member of the public to apply for a review even though we would be happy if they do so.

Question 3: Should “one to one message” be a Concern of the Constitution as regards “Free Speech”?

My Opinion is as follows:

The striking down of Section 66A is directly related to Article 19(1) of the Constitution of India guaranteeing a freedom of speech and expression.

This article 19(1) says: All citizens shall have the right to freedom of speech and expression;

“Speech” and “Expression” are very broad words. They are as vague as “annoying” or “offensive” referred to in the judgement and are amenable to different interpretations.

We understand that “Speech and Expression” can be spoken or otherwise conveyed. But for the Constitution to be concerned,  it should be important to note

-to whom was the Speech and Expression was conveyed and

-for what purpose and

-with what intention.

A piece of communication may be conveyed to different persons with different intentions and for different purposes and with different outcomes.

For example, if I had conveyed the contents of this article to

a) Myself in front of a mirror,

-it would be an expression to self and has no consequence to any body and the Constitution of India has no reason to intervene.

b) Another person  either by spoken words in a private conversation or through an email/SMS or a letter

-only he would have the cause of action either to get annoyed or amused or excited or educated or disgusted and take action under any statutory provision.

– Suppose he is shocked and faints and in the process injures himself, he may hoist some liability on me for causing the injury though unintended. Court can decide what punishment can be given to me for having conveyed a shocking information in an insensitive manner.

Should Constitution of India intervene in this case?… I donot think so. I feel that in a private conversation, no constitutional right is infringed. On the other hand if the recipient of such a message makes the conversation public without my consent, it may infringe on my right to privacy.

c) To many persons in my e-mail list or through SMS or Whatsapp for information

-This may be considered as “Advocacy” on why the Judgement is wrong and why it needs to be reviewed.

– Still this (one to many communication)  is an aggregation of several one to one communications and if any one or some of the recipients are annoyed or offended, the cause of action lies with that person. The effect of the communication may not be same on each of the recipients. One may get annoyed another may get amused and another may be happy.

Hence we cannot say that “Sending” per-se of a message is a punishable offence without attaching it with to whom it was sent and with what effect. If it causes an annoyance, let it be taken up by that person under normal law and let Courts find a remedy.

Again I donot think that Constitution has any role to intervene in such one to many messaging.

d)  The community by placing  it on this blog which is open to any one who can browse the internet and is also available to search engines to pick up and propagate.

-In this case, there is an effect on the community. Some in the community may be happy and some may be unhappy. Some may get really annoyed and perturbed.

-Now there can be a role for the Constitution as the effect of the “Speech” is on the community.

-It is in such instances that Constitution has a role to play.

There is no disagreement that in such cases Courts should come to protect the interest of the community and if any legislation is made to that effect, it should be subject to the test of Article 19(2) and struck down if necessary.

In the above 4  instances, one can distinguish a “No Message” besides “a One to One Message”, “One to Many Message” and “Publishing”. Since “One to Many Message” is an aggregation of “One to One Messages”, essentially there are two categories of speech and expression such as a “Message” and “Publishing”.

At first glance it appears that there is full agreement in what I am saying above and what the Court has said in the judgement that the case of Palghar girls or the Cartoonists or the Twitter uses, there was an infringement of constitutional freedom and they deserved to be set free of charges.

But this argument as used in the judgement does not provide sanctity to the striking down of Section 66A since Section 66A was not meant to curb the freedom of speech falling under category (d) above.

This distinction between what is messaging and what is publishing in the Internet context and different services such as the world wide web, email, Message Board as also in the mobile network such as SMS/Whats App as also private networks such as RF broadcasts, intranet messaging etc was relevant for arriving at a judgement in this case and the petitioners donot seem to have raised  this issue.

Of course the petitioners are not expected to always come with a “Clean Hand” and Courts ignore if they tend to represent only what they want the Court to conclude. Counsels donot always work as “Officers of the Court” but as “Representatives of their clients” and hence are not obliged to present differing views on a matter of technology.

Hence we maynot find any fault with the petitioners that they sought to merge the meaning of “Message” and “Publishing” as one and also that “All Information” and “Any information that one sends…” as one while filing the petition. It is their prerogative though in the context of a PIL, it can be considered as dishonest.

It was the duty of the defense counsel to raise the difference between messaging and publications and how ITA 2008 addressed them differently. But he failed to do so perhaps out of lack of understanding of cyber laws.

This  being a PIL, it was also the expectation that the Court ought to have raised relevant queries or even sought the services of experts to explain the intention behind the legislation.

I remember that in one of the very old cases on Cyber Cafe regulations, around year 2001, Mumbai High Court was confronted with a case regarding “Obscenity” and what steps the Cyber Cafes need to take.  At that time, the Court ordered that certain publications (which incidentally included one of my articles then published in naavi.com) representing different view points be hosted on the web for public information and requested the public to contribute their views before the Court could form its own view in the matter.

Here the Court accepted that being a new area of jurisprudence it would be worthwhile to seek the views of experts and in the absence of any identified experts, calling for public comments through the Internet was an excellent measure.

In the present case, the Supreme Court did not consider it necessary either to summon expert witnesses of its own or perhaps thought that it knew enough of technology and based its judgement on the presentations of the two sides one of which was a disinterested defense.

The Court did not recognize that one of the sides namely the Government was only defending because it was the Government of the day and the impugned provision of law was actually considered as the baby of the previous Government. There could have been lack of conviction on the part of the defense. They could also be displaying the same lack of understanding which the policemen showed in using Section 66A in various cases and which the Supreme Court has now based it’s judgement on.

In the process, the interests of several genuine beneficiaries of Section 66A which included victims of Cyber Stalking, Cyber Bullying, Spamming, Phishing etc were trampled upon by the Supreme Court since it was not vigilant of such a possibility.

Those of us who thought that Supreme Court would be wise and take care of public interest and had otherwise no resources to implead ourselves in the proceedings which take place in the far away Delhi, placed faith on the Court. We sadly realize now that it was a mistake.

Question 4 : If Section 66A goes, are there other sections to protect genuine Victims and are they equally effective?

If the Supreme Court feels that the decision is fine and it is for the Government to bring an alternate legislation, then there will be a  certain vacuum in which Cyber Criminals will rejoice.

There will be other sections that will be tagged to the offence from IPC and the show goes on.  May be police will find 66F more effective or manage with 66 or attempt to commit 67B which are easy to apply. May be Cyber Stalking with blank messages or non obscene, non threatening  messages and spam will be difficult to fit in some of the other sections. But Police are ingenious enough to find ways.

I however donot agree that because there may be other sections under which similar offences can be made out there is no real adverse effect on law and order.

Such an argument can be extended to the entire ITA 2000/8 and we can say that there is no need for any of the offences since all of them can be covered under some provisions of IPC.

Question 5 : Will this decision to scrap Section 66A encourage more Cyber Crimes?

In my opinion, the decision has already created a perception that anything goes in India as far as Internet is concerned.  There will be  a barrage of irresponsible and mischievous attacks not only on women but also on Companies in the coming days.

The judgement has left a “Chilling Effect” on the society that India has a high level of toleration for Cyber Crimes and Cyber Stalking  is acceptable.

This is seen as hypocrisy since on the one hand we pass IPC amendments and try to protect women by classifying any assault on woman as “Rape” and on the other hand we dilute cyber laws to allow “Stalking” of all kinds.

Question 6: Is Our Cyber Law Framework Capable of supporting the Digital India?

In the context of this judgement, a question arises whether the judiciary displayed its inability to understand legislation related to technology  particularly when we are talking of Digital India, with Internet of Things, Smart Cities, Big Data etc.

If the Court cannot distinguish between a simple “Message” and “Publishing”, how can we trust it to differentiate “Big Data” and “Small Data” and interpret privacy and data protection in the context?  How can it interpret the offences on “Secondlife.com” or in a M2M (Machine to Machine) Communication”?

We are in for a confused state of affairs with respect to all our digital initiatives since it would not be backed by proper legal provisions. We can recall here that one case in Delhi regarding “Internet Hours Theft” was booked in the pre-ITA 2000 days and also another incident in Haryana where a company moved it’s business to Australia since they were annoyed with the police who could not understand how a file which the company was showing to the Police as “Stolen” actually continued to exist with the company itself.  Police have become smarter compared to the time of these incidents but technology is moving faster and leaving everyone of us behind. Police will continue to find it difficult in understanding the crimes of future and without adequate legal backing the future of Cyber world in India is threatened.

Question 7:

Did the Court abdicate its responsibility in refusing to read down and clarify the legislation? 

The Judgement has come down heavily on the Section 66A that it is “vague” and cannot be saved by “Reading down”. Court refused to read down or accept severeability and insisted that they can only strike it down in full.

In this context we need to ask if it is not the duty cast upon the Judiciary to read down difficult provisions and remove the “Vagueness” if present? In my opinion there was no more vagueness in the section as many other sections in ITA 2000 or IPC.

Also as discussed earlier, Supreme Court failed to take cognizance of opinion available in the public domain which was directly contrary to the decision that the judgement has now come to. The views expressed here  after the judgement has been delivered is not new and have always been available. In fact this opinion has been available  on this site since a long time for any one interested in such information. We should assume that the Court was aware of the existence of an opinion such as Mis perceptions about Section 66A published on January 24, 2013 which addressed most of the issues we are now discussing.

I am not advocating that the views expressed here should have been accepted in full. But was there any indication that it was debated properly and decided upon? In my opinion, the answer is “No”. The Court conveniently ignored the presence of these views. Perhaps they did not take sufficient efforts to find out if such opinions exist amongst any section of the society.  Scouting of opinion which could be contrary to the petitioner’s views was an obligation since this was a public interest litigation and any decision was known to affect persons other than the petitioners also.

If in 2001, Mumbai High Court could have identified that naavi.com had an article relevant to the case on hand, in 2015, for the Supreme Court which does research on a global data base and quotes cases at the drop of the hat from US and UK, it was not difficult to locate the earlier articles with a simple google search.  We believe that such articles have  been gone through and the Court  could have ignored them  since it represented a contrarian view.

The Additional Solicitor General perhaps missed these arguments which would have helped him defend, since the Government was defending the case half heartedly.

A vigilant Supreme Court could have called for the contrarian opinions to be taken note of, discussed and rejected it if necessary after deliberation. Alternatively since the proposed decision was to strike down the section 66A which was the opinion some prominent judges held even before the case was filed, Supreme Court could have published its intention as a public  notice and called for objections from the public.

Instead, the case was heard like a private dispute and the decision affecting the community was delivered to the public denying them the right to contest the case.

The pertitioner  Shreya Singhal in one part of the interview, published in ibnlive.in, admits with reference to the “India’s Daughter Documentary”  that the viewer has a choice to view or not and this makes a difference. In this case her argument is that India Daughter’s documentary can stay on the Internet because no body is compelled to view it. That is a valid argument except that it also applies to the case of the petitioner.  The contention of the petitioner in the Palghar case was that content in Facebook was objected to. Was this also not a content which any body had the right to view or not? . Similarly the case of Aseem Trivedi and Professor Mahapatra also related to publishing on a website. In Ravi Srinivasan’s case it was a “Twitter Message” which also was viewed only by interested persons.

All these cases were cases of “Publishing” where the viewer had a choice to view or not. Still I have no problem if they are tested against Article 19(1) and 19 (2). But they cannot be tested against provisions of Section 66A because Section 66A is not for publishing. It is like applying a rule made for mangoes and rejecting the grapes say, because each grape fruit is not as big as a mango.

 If the Court had asked for statistics of how many views were there to the postings before the Police filed the case and after it, one could have come to the conclusion that the “annoyance” etc if any was caused by the action of the Police and subsequent publicity it generated and not by the posting per-se. Hence it was the police which caused annnoyance and not the person who posted nor the posting itself.

The Court chose to ignore this aspect deliberately and stuck down the section perhaps because it had already made up its mind based on the judgement of the policemen that Section 66A intended that the persons who posted views on Facebook, Twitter or Blogs are amenable for action under Section 66A.  The investigating officer who filed the FIR in case of Palghar case may feel proud that his views on Section 66A were endorsed by the highest court.

It would have been necessary for the Court to deliberate on all the issues discussed here as a part of the judgement and provide necessary clarifications. This would have added to the Cyber Jurisprudence in India. The Court failed to do so.

Question 8: Is “Vagueness” in legal drafting capable of being eliminated?  

Also the Court spent lot of time in explaining that certain words used in the section were vague and open ended.  But it is necessary to question what the Court means by  “Vague”? .. If “Annoying” or “Offensive” are vague words,  have they been never used in any other law? How does the Court come to a conclusion that sections such as 66B to 66F, 67, 67A and 67B, 69A etc are not vague?

How is Section 66 not vague when it uses the word “Dishonestly” and fraudulently which is not even defined under ITA 2000 and we need to look at IPC for finding out its meaning? If reference to IPC is fine with ITA 2008, every word can be referred to a dictionary any way.

Let a common man read the definition of “dishonestly” and “fraudulently” as used in IPC. He will find that the meaning is as vague as annoyance or offensive if not more.

“Dishonestly” is defined under Section 24 of IPC as :Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”.

Similarly” Fraudulently” is defined as A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.

The definitions forms a loop that  leads from one vague word to another vague word. For example, dishonestly leads to wrongful and fraudulently leads to intent to defraud. How can this be considered as clear and precise? The Court’s contention that Section 66 is precise where as 66A is not is therefore unacceptable.

It appears that the Court has not applied a consistent view in arriving at its decision and dubbing certain words as vague and others as not. In fact by making references to some other sections and comparing them with Section 66A, they have actually made their case weak.

In our opinion, it is not possible nor even desirable that the law is drafted without scope for judicial interpretation based on the context. One cannot be specific in defining the crimes since we donot always have the privilege of knowing what crime can be committed in a growing area of technology.

For example, let the Court consider techology developments such as 3D printing and offences that can be committed in that sphere. Then they will find that technology is difficult to understand and its possible misuse more so. Can we write down a law in “Specific terms” of all crimes that can be committed in a “futuristic Smart City”? If we attempt it, then we will create more loop holes and the law loses its meaning as a factor of deterrence of criminal activity and affect the harmonious existence of the society.

While every effort may be made to clarify the law with examples and explanations, we feel that Courts particularly at the highest level in any country should not run away from the responsibility of reading down the law. This will facilitate insertion of such explanations and examples so that we can understand the provisions in a dynamic world as is relevant for the space and time in which it is applied. This judgement reflects such a tendency to avoid such responsibility.

Question 9:

Have we now created a “Precedent” which is undesirable?

Under the standards of “Specificity” that this judgement has defined, it is possible that the entire ITA 2000/8 may become untenable and I am sure that even IPC becomes untenable in major parts. If we are today accepting IPC, it is only because of the understanding derived over a period of time and not because the words used were different.

In fact most Criminal Courts conduct their business in local languages and it always involves interpretation of law written in English and read down in the local language. Some times local customs and usage may also have a bearing on the interpretation. This is a fact of life and must be accepted by the Judiciary.

We cannot force the Executive to give an auditor’s checklist of what is a crime so that the Court can tick appropriate boxes.

We must therefore consider the demand for “Specificity” by the Court as unrealistic and undesirable. Such an expectation must be removed from the Jurisprudence as it will hurt all future legislation and also endanger many other existing legislation.

This is not conducive to the development of a secure and progressive Cyber Society.

Question 10:

Should not  the Supreme Court  take up a suo moto review of the decision?

From all the above accounts, I feel that the Supreme Court should call back the judgement and take it for a review on its own.

The Government can call for a review but I feel that it will have its hesitation since it would immediately be politically dubbed as a renewed attempt to curb freedom of speech.  Only if the Government has the conviction that what they are doing is right, will they take up the review. At this point of time going by the sheepish statements of different BJP represenatives that they will bring a new legislation to address the issue the conviction may be lacking.

People like us neither have the resources nor the capability of seeking a review in public interest by moving a petition in the Court.

We still trust that Courts are capable of ordering a review on their own to prevent wrong precedents being set and under this ground, we request the Supreme Court to suo-moto order a review and take the right decision which is to retain the section, dismiss the criminal action against the clients of the petitioners and similar cases, pass strictures on the Police for misuse and demand that the Government puts checks and balances in the Act against such misuse in future.


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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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