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Building a Responsible Cyber Society…Since 1998

Mr S.N.Ravichandran, a member of Cyber Society of India and a person having extensive experience of having worked with Cyber Crime victims as well as Law Enforcement Officials in Coimbatore has sent the following views about the recent Supreme Court decision in the Shreya Singhal Vs Union of India case.

The views of Mr Ravichandran is corroborated by today’s TOI report where a policeman posted obscene information (Refer article: Cop misreads 66A relief, posts porn clips on WhatsApp group with DIG, SSPs in it). Yet another report says “After SC scrapped 66 A,  Sec 67 lands an IT prof in prison“.

Experts continue to have differing views. But most of the experts who have experience in working with Cyber Crime cases are not entirely happy with the decision while the human rights activists are in the fore front of hailing the decision.  Most of the prominent persons are however moderate in their expression since they want to be seen as not criticizing the highest court of the land. Mr Pavan Duggal therefore concludes “Legislative language must ensure balance between curbing rights and protecting them“.

What we are repeatedly saying is that there is that striking down of the section was done without appreciating that the section had nothing to do with the attack on free speech indulged in by the Police.  Such abuses will continue with or without Section 66A and with or without ITA 2000. Mere possibility of abuse should not the ground for removing the section because a logical extension of this principle will remove the more than half of our laws.  Mr Ravichandran’s observations are on similar lines and he presents his case with conviction and elaborately.

Naavi

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QUOTE:

Cyber Anarchy Unleashed Courtesy The Supreme Court of India

The strength or infirmity of a judgment sometimes depends on a single fact presented properly or improperly, appreciated wholly or partially and conclusions drawn from the presentation. If facts presented are viewed by a mind clouded by preconceived notions and/or is driven by the cacophony of noise made by vested interests then that judgment is bound to be flawed. The judgment given by the Supreme Court on Section 66A falls in such a category.

 This probably is one of the few cases where the petitioner has presented facts arising out of misconception and presumption, the respondents have responded without conviction and with ignorance of the subject and the judgment delivered without applying one’s mind. My objections after reading the judgment arise from the following points.

The judgment starts at para 20:

  1. With these prefatory remarks, we will now go to the other aspects of the challenge made in these writ petitions and argued before us.  .Article 19(1)(a) Section 66A has been challenged on the ground that it casts the net very wide – “all information” that is disseminated over the internet is included within its reach. It will be useful to note that Section 2(v) of Information Technology Act, 2000 defines information as follows:

“2. Definitions.—(1) In this Act, unless the context otherwise requires,—

(v) “Information” includes data, message, text images, sound, voice, codes, computer programmes, software and databases or micro film or computer generated micro fiche.”

Two things will be noticed. The first is that the definition is an inclusive one. Second, the definition does not refer to what the content of information can be. In fact, it refers only to the medium through which such information is disseminated. 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.

That such information may cause annoyance or inconvenience to some is how the offence is made out. It is clear that the right of the people to know – the market place of ideas – which the internet provides to persons of all kinds is what attracts Section 66A. That the information sent has to be annoying, inconvenient, grossly offensive etc., also shows that no distinction is made between mere discussion or advocacy of a particular point of view which may be annoying or inconvenient or grossly offensive to some and incitement by which such words lead to an imminent causal connection with public disorder, security of State etc.

The petitioners are right in saying that Section 66A in creating an offence against persons who use the internet and annoy or cause inconvenience 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.

66-A. Punishment for sending offensive messages through communication service, etc.

—Any person who sends, by means of a computer resource or a communication device,—

………..or to deceive or to mislead the addressee or recipient

 The petitioner’s assumption that Section 66A covers “all information disseminated on the net” is completely wrong.

 The Section only talks of “any information”. It talks only of particular  information sent by a person to a recipient. The information between the sender and the recipient alone is the subject of the section. Again only that information between the sender and the recipient which is qualified by the adjectives “offensive, menacing etc” is sought to be punished.  Further the Section does not envisage the sensitivity of a third person, not involved in the correspondence, to take umbrage at the tone of the information. It is the recipient who must be affected by such messages.

Section 66 A restricts itself only to that information which is objected to, by the recipient. Section 66 A further qualifies the above statement by saying that the recipient must affected by such messages.

Section 66 A also lays down the condition that the information so sent must be false to be taken cognizance of.  

It goes further to tell that the recipient must have received the messages “persistently”.

It also mentions that the sender must have done it anonymously.

It is surprising that a simple reading of the Section, which would have lent clarity to the subject, was not done by the petitioner, the respondent and/or by their Lordships.

Section 66 A does not, by any stretch of imagination, encompass the net and all the information posted on it as wrongly claimed by the petitioner. It concerns only with messages between a person and a recipient who could be another person or group of persons.

The definition of information as given in the Act is an inclusive one. That it is restricted to cyber space as far as this act goes only proves that considerable thought has gone into the formulation. The Act concerns itself only with crimes committed in Cyber space or with/or on computers, computer resources etc. It does not concern itself with information or crimes committed outside this realm.

It is inconceivable how the Hon’ble Judge presumed that the Section  covered “all the information” on the entire net, when the wording of the Section 66 A itself points out that it is restricted to only those computer, computer resources etc through which the information travels from one person to another. While the net is a medium through which the information travels from one person to another  Section 66 A restricts itself to only that portion of the net or cyber equipment or Cyber space which has been used by sender to send the message.

It does not talk or imply or cover other parts of cyber space or equipment through which information posted by other persons through, or, on different parts of the net for public consumption or private conversations. No restrictions are envisaged or can be seen to be covered by this section regarding posting, uploading, sharing, communicating information other than what has been stated above.

The petition has erred by claiming that all information posted on the net falls in the ambit of this section. The respondent has erred by not refuting this argument and instead requesting the Court to reframe the Section and the Court has erroneously assumed that the petitioner and the respondent are aware of what they are debating about and has passed a judgment without going through the Section and considering the ramification of the sweeping observation made. Ignorance has been compounded by lack of conviction and given legal sanctity by the strings of ill considered and thoughtless observation.

His Lordship has leapt from defining information to the presumption that the Section concerns only with the medium of transmission. From this understanding a conclusion that the petitioner is correct in her contention that the public’s right to information has been affected has been arrived at. How such a wild and presumptuous conclusion is arrived at is not explained.

Section 66 A talks specifically of information in the form of messages exchanged between a person as a sender and a recipient through the medium of cyberspace. Where does the public come into the picture? How is the right of the public to information affected? Is it the Lordship’s contention that the public has a right to the information shared between two individuals or two private parties?

Having said this one cannot but conclude that the basic premise of the petition is flawed. It therefore necessarily follows that the conclusion reached on this premise would be wrong. Section 66 A and the offences specified under it does not violate any provision of Section 19(1) on the citizen’s Right to Freedom and Expression. From this conclusion it follows that any discussion on Section 19(2) is unnecessary, irrelevant, immaterial and infructous. The judgment is required to be set aside on this ground alone.

  1. This decision lays down the test that has to be formulated in all these cases. We have to ask ourselves the question: does a particular act lead to disturbance of the current life of the community or does it merely affect an individual leaving the tranquility of society undisturbed? Going by this test, it is clear that Section 66A is intended to punish any person who uses the internet to disseminate any information that falls within the sub-clauses of Section 66A. It will be immediately noticed that the recipient of the written word that is sent by the person who is accused of the offence is not of any importance so far as this Section is concerned. (Save and except where under sub-clause (c) the addressee or recipient is deceived or misled about the origin of a particular message.) It is clear, therefore, that the information that is disseminated may be to one individual or several individuals. The Section makes no distinction between mass dissemination and dissemination to one person. Further, the Section does not require that such message should have a clear tendency to disrupt public order. Such message need not have any potential which could disturb the community at large. The nexus between the message and action that may be taken based on the message is conspicuously absent – there is no ingredient in this offence of inciting anybody to do anything which a reasonable man would then say would have the tendency of being an immediate threat to public safety or tranquility. On all these counts, it is clear that the Section has no proximate relationship to public order whatsoever. The example of a guest at a hotel `annoying’ girls is telling – this Court has held that mere `annoyance’ need not cause disturbance of public order. Under Section 66A, the offence is complete by sending a message for the purpose of causing annoyance, either `persistently’ or otherwise without in any manner impacting public order

Selective reading of Section 66A leads to selective understanding. Selective reading of the Section with a mindset leads to blinkered understanding. Selective and blinkered understanding does not lead to a fair and clear appreciation of the objects and reasons of the subject. The Additional Solicitor General talks of information disseminated on the net and media and publishing at length. All of which have no bearing or relevance to Section 66 A which is about private messages or information exchanged between two or more individuals. Information shared between two or more individuals over e-mail, mobile phones on a one to one basis or on a conference call, or messages sent over any of the social media sites including Twitter is between the sender and the recipient and is not for public consumption. If by reasons of not taking precautions to secure the communications, the information or message is revealed to the public, even then, since the communication is not addressed to the general public, cognizance of any hurt, or annoyance caused to the unintended reader of the message cannot be taken. His Lordship has accepted that the Section has no proximate relationship to public order.

He also mentions that the section does not contain any ingredient in this offence of inciting anybody to do anything which a reasonable man would then say would have the tendency of being an immediate threat to public safety or tranquility   Then the natural conclusion would be that the Section refers to a private relationship or transaction which is of no interest to the public. If that is the case then how does one conclude that it affects Freedom of Speech and Expression? This observation only confirms that the Section deals with the dispatch of information in the form of a message from one person to one or several persons and in the event that a recipient finds it distasteful he or she has the right to lodge a complaint and have action initiated against the sender of the message after due investigation.

By declaring this section as unconstitutional the Hon’ble Judge has infringed on the fundament Right of Redressal and the Fundamental Right to Freedom to move, act, speak and express within the boundaries of law which is guaranteed by the Constitution. This judgment has extended  protection to a stalker or a bully to send unwanted, obscene, annoying, harassing, offensive and menacing messages to vulnerable individual and groups of individuals in society. His Lordship has assumed that the Section does not give importance to the recipient’s sensitivity just because the recipient is addressed only in section (c).

How this conclusion is arrived at is beyond explanation.

That there is a sender and a recipient is implicitly and explicitly indicated in the Section. It has also been observed that the Section does not discriminate between individual dissemination or mass dissemination. While this observation is correct the moot point is how does it affect the constitutionality of the Section.  The purpose of the Section is to determine if an offence is committed and the punishment is specified for it.

An offence is committed irrespective of whether the message has been communicated to a single or mass gathering if the investigation is able to prove that there was an intention on the part of the sender to hurt, annoy, offend or menace the recipient be he one or several.  In para 21 of the CA No 749,750, 751,752,764,765,766 of 2003 P Nedumaran vs State The Madras High Court has quoted extensively from authoritative pronouncement of the  pronouncement  of  the  Apex Court  in  People’s Union for Civil Liberties case, cited supra, in respect of the interpretation of the provisions of Sec.49(6),  Sec.49(7)  and  Sec.21  of POTA, it will not be necessary for us to examine the nature of the offences in the light  of  the submissions made before us. 

In so far as the provisions of Sec.21 of POTA is concerned, the Supreme Court holds: “But the petitioners apprehension regarding the absence of mens rea  in  these sections and  the  possibility of consequent misuse needs our elucidation.  It is the cardinal principle of criminal jurisprudence that mens rea  element  is necessary to  constitute a crime.  It is the general rule that a penal statute presupposes mens rea element.  It will be excluded  only  if  the  legislature expressly postulate otherwise.” (Emphasis is mine)

Referring to  the  KARTAR  SINGH  v.  STATE OF PUNJAB (1994 (3) SCC 569) , the Supreme Court then further goes on to hold:

“Mens rea by necessary implication could be excluded from a statue only where it is  absolutely  clear  that the implementation of the object of the Statue would otherwise be defeated.  Here we need  to  find  out  whether  there  are sufficient  grounds  for  inferring  that  Parliament  intended to exclude the general rule regarding mens rea element.”

 The Supreme Court then referred to the decisions in STATE  OF  MAHARASHTRA  v.M.H.  GEORGE (AIR  1965  SC 722); NATHULAL v.  STATE OF M.P.  (AIR 1966 SC 43) and INDER SAIN v.  STATE OF PUNJAB (1973 (2) SCC 3 72) and further observed:

 “Offence under section 3(1) of POTA will be constituted only if it is done with an –

 ‘intent’.  If Parliament stipulates that the ‘ terrorist act’ itself has  to be committed with the criminal intention, can it be said that a person who ‘profess’ (as under section  20)  or  ‘  invites  support’  or  ‘arranges, manages,  or  assist  in  arranging  or  managing  a  meeting’ or ‘addresses a meeting’ (as under section 21) has committed the offence if he does  not  have an intention or design to further the activities of any terrorist organization or the commission of terrorist acts?  We are clear that it is not. 

Therefore, it  is  obvious  that  the offence under Section 20 or 21 or 22 needs positive inference that a person has acted with intent  of  furthering  or  encouraging terrorist activity  or  facilitating  its  commission.   In other words, these Sections are limited  only  to  those  activities  that  have  the  intent  of encouraging  or  furthering  or  promoting  or  facilitating the commission of terrorist activities.  If these Sections are understood  in  this  way,  there cannot be  any  misuse.   With this clarification we uphold the constitutional validity of Sections 20, 21 and 22.  “

 Mens Rea is an essential component of any offense and it has to be established.

 Then the question of clear and present danger discourse comes up

  1. Viewed at either by the standpoint of the clear and present danger test or the tendency to create public disorder, Section 66A would not pass muster as it has no element of any tendency to create public disorder which ought to be an essential ingredient of the offence which it creates.

When the test of Clear and Present Danger is applied to public order Section 66 A would not pass muster. This is natural because Section 66 A is not about an offence which would create public disorder. The Clear and Present Danger when applied to the individual who receives an offensive or menacing call or message is what the section addresses.  I have quoted from the above judgment extracts from the same US Court examples cited to show how this Section is essential for protection of an individual from threats-

“Interestingly, the US Courts have gone on to make a further refinement. The State may ban what is called a “true threat”.

 “’True threats’ encompass those statements where the speaker means to communicate a serious expressionof an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

 “The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”

See Virginia v. Black (Supra) and Watts v. United States 22 L. Ed. 2d. 664 at 667

While the US Courts has been extensively quoted on the sanctity of Freedom of Speech and its importance to democracy it is puzzling to note that its recommendation for the State to step in and make laws to protect an individual or a group of individuals from being threatened is ignored.  To add insult to injury the judgment now overturns laws made by the State to protect a citizen’s right to freedom, life and liberty in guise of protecting his Right to Freedom of Speech and Expression.

The attention of the Court is drawn to two cases of national importance where messages sent over the mobile phone went viral and created panic situation.

In the first instance in 2008 at the height of the global sub-prime loan crisis when banks were falling all over the world a SMS from a person stating that “ICICI bank was on the verge of bankruptcy” led to a run on the bank and it required the RBI to intervene with substantial funds to retrieve the situation

In the second instance it may be recalled that an SMS message regarding mass targeting of people in the North East led to an exodus of the people from different parts of the country to the North East.

 These two instances are sufficient grounds to show that messages can do have the propensity to create public disorder or instill fear in the public on a mass scale. If these examples are taken into account then the argument that 19(2) is not satisfied does not wash. The Section cannot be dismissed as constitutionally invalid. It is surprising that the respondents did not quote these examples.

  1. Equally, Section 66A has no proximate connection with incitement to commit an offence. Firstly, the information disseminated over the internet need not be information which “incites” anybody at all. Written words may be sent that may be purely in the realm of “discussion” or “advocacy” of a “particular point of view”. Further, the mere causing of annoyance, inconvenience, danger etc., or being grossly offensive or having a menacing character are not offences under the Penal Code at all. They may be ingredients of certain offences under the Penal Code but are not offences in themselves. For these reasons, Section 66A has nothing to do with “incitement to an offence”. As Section 66A severely curtails information that may be sent on the internet based on whether it is grossly offensive, annoying, inconvenient, etc. and being unrelated to any of the eight subject matters under Article 19(2) must, therefore, fall foul of Article 19(1)(a), and not being saved under Article 19(2), is declared as unconstitutional.

It is irrational to presume and make sweeping statements that information disseminated over the internet need not be information which “incites” anybody at all. It may be pointed out that in several cases in the US and UK the reason for children committing suicide or individual’s killing other people or raping women has been traced to pernicious information on ways and means of committing suicide, killing people and pornographic material available on the net including pedophilic material,  threatening messages, bullying messages,  defamatory information being posted on the net.  It is for this reason that Section 67 of the Information Technology Act has been promulgated to prevent such information from being openly disseminated over the net. 

Section 66 A addresses such of that information which when communicated to a target would either be a crime itself (sending inappropriate material to a child) or induce or force a victim to submit to the attacker. It is quite possible that such targeted communications could cause a crime to be committed by the recipient in self defense against such insidious attempts if no other avenue is left open to him/her for redressal.

This judgment has ensured that. Is it the Court’s contention that a violent reaction from a harassed victim alone will ensure the Court’s intervention to uphold his/her Right to Life and Liberty? Looking at the issue from this point of view the government has every right to enact laws to prevent any action which would incite violence on an individual or a group of individuals and not necessarily the public. Under this argument Section 19(2) would definitely apply and the Section is constitutionally validated.

Attention of the Supreme Court is drawn to the following settled case:-

In the case filed by A.K.Gopalan against the State of Madras, Union of India May19 1950 the Court pointed out that ” Thus the right to freedom of speech and expression is given by 19 (1) (a). But clause (2) provides that such right shall not prevent the operation of a law which relates to libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State. Clause (2) thus only emphasizes that while the individual citizen has a free right of speech or expression, he cannot be permitted to use the same to the detriment of a similar right in another citizen or to the detriment of the State. Thus, all laws of libel, slander, contempt of Court or laws in respect of matters which offend against decency or morality are reaffirmed to be operative in spite of this individual right of the citizen to freedom of speech and expression.

I would also like to mention at this point that the Supreme Court has frowned on the practice of quoting foreign judgments at the drop of a hat particularly when our own Court has decided on issues. It would have been in the fitness of things if the case quoted above had been cited as it has a direct bearing on the subject.

 What has been said with regard to public order and incitement to an offence equally applies here. Section 66A cannot possibly be said to create an offence which falls within the expression ‘decency’ or ‘morality’ in that what may be grossly offensive or annoying under the Section need not be obscene at all – in fact the word ‘obscene’ is conspicuous by its absence in Section 66A.

What has been said with regard to public order and incitement applies equally applies here. Section 66 A covers offences which falls within the expression of decency or morality which may offend or annoy the recipient of the message.  For example a simple message saying “I love you” sent a thousand times to a married woman by a person who is not her husband fall s squarely in this expression. Anonymous calls at unearthly hours done persistently over a period of time could be considered as annoying.  Calling a senior government official on his official phone and talking inanities is also an offence. Obscenity is not included in Section 66A since it is covered under Section 67.

  1. However, the learned Additional Solicitor General asked us to read into Section 66A each of the subject matters contained in Article 19(2) in order to save the constitutionality of the provision. We are afraid that such an exercise is not possible for the simple reason that when the legislature intended to do so, it provided for some of the subject matters contained in Article 19(2) in Section 69A. We would be doing complete violence to the language of Section 66A if we were to read into it something that was never intended to be read into it.Further, he argued that the statute should be made workable, and the following should be read into Section 66A:

“(i) Information which would appear highly abusive, insulting, pejorative, offensive by reasonable person in general, judged by the standards of an open and just multi-caste, multi-religious, multi racial society;

Director of Public Prosecutions v. Collins –(2006) 1 WLR 2223 @ para 9 and 21

Connolly v. Director of Public Prosecutions reported in [2008] 1 W.L.R. 276/2007 [1] All ER 1012

– House of Lords Select Committee 1st Report of Session 2014-2015 on Communications titled as “Social Media And Criminal Offences” @ pg 260 of compilation of judgments Vol I Part B

(ii) Information which is directed to incite or can produce imminent lawless action Brandenburg v.Ohio 395 U.S. 444 (1969);

(iii) Information which may constitute credible threats of violence to the person or damage;

(iv) Information which stirs the public to anger, invites violent disputes brings about condition of violent unrest and disturbances; Terminiello v. Chicago 337 US 1 (1949)

(v) Information which advocates or teaches the duty, necessity or proprietary of violence as a means of accomplishing political, social or religious reform and/or justifies commissioning of violent acts with an intent to exemplify glorify such violent means to accomplish political, social, economical or religious reforms [Whitney vs. California 274 US 357];

(vi) Information which contains fighting or abusive material;

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

(vii) Information which promotes hate speech i.e.

(a)Information which propagates hatred towards individual or a groups, on the basis of race, religion, religion, casteism, ethnicity,

(b)Information which is intended to show the supremacy of one particular religion/race/caste by making disparaging, abusive and/or highly inflammatory remarks against religion/race/caste.

(c) Information depicting religious deities, holy persons, holy symbols, holy books which are created to insult or to show contempt or lack of reverence for such religious deities, holy persons, holy symbols, holy books or towards something which is considered sacred or inviolable.

(viii) Satirical or iconoclastic cartoon and caricature which fails the test laid down in Hustler Magazine,Inc. v. Falwell 485 U.S. 46 (1988)

(ix) Information which glorifies terrorism and use of drugs;

(x) Information which infringes right of privacy of the others and includes acts of cyber bullying, harassment or stalking.

(xi) Information which is obscene and has the tendency to arouse feeling or revealing an overt sexual desire and should be suggestive of depraved mind and designed to excite sexual passion in persons who are likely to see it.Aveek Sarkar and Anr. vs. State of West Bengaland Ors. (2014) 4 SCC 257.

(xii) Context and background test of obscenity. Information which is posted in such a context or background which has a consequential effect of outraging the modesty of the pictured individual.

Aveek Sarkar and Anr. vs. State of West Bengal and Ors. (2014) 4 SCC 257.”

  1. What the learned Additional Solicitor General is asking us to do is not to read down Section 66A – he is asking for a wholesale substitution of the provision which is obviously not possible.

The learned Additional Solicitor General has erroneously asked the Court to read matters in Section 66A which do not fall in its ambit. However having said that it may be pointed out the following points (i, ii iii, vii (a,b and c), x) are part of Section 66 A. While the Court has rightfully declined to read down the Section it need not have jettisoned the entire section since the purpose of Section 66 A is to define such offences and make it punishable.

  1. These two cases illustrate how judicially trained minds would find a person guilty or not guilty depending upon the Judge’s notion of what is “grossly offensive” or “menacing”. In Collins’ case, both the Leicestershire Justices and two Judges of the Queen’s Bench would have acquitted Collins whereas the House of Lords convicted him. Similarly, in the Chambers case, the Crown Court would have convicted Chambers whereas the Queen’s Bench acquitted him. If judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as “grossly offensive”or “menacing” are so vague that there is no manageable standard by which a person can be said to have committed an offence or not to have committed an offence. Quite obviously, a prospective offender of Section 66A and the authorities who are to enforce Section 66A have absolutely no manageable standard by which to book a person for an offence under Section 66A. This being the case, having regard also to the two English precedents cited by the learned Additional Solicitor General, it is clear that Section 66A is unconstitutionally vague.

A complete reading of the above two cases would have shown the Court the conclusion that the Queen’s Bench arrived at.

In DPP v Collins [2006] 1 WLR 2223 Lord Bingham said:

“Section 127(1)(a) does of course interfere with a person’s right to freedom of expression. But it is a restriction clearly prescribed by statute. It is directed to a legitimate objective, preventing the use of a public electronic communications network for attacking the reputations and rights of others. It goes no further than is necessary in a democratic society to achieve that end.”

He therefore concluded that section 127(1), in itself, did not infringe Article 10 of European Convention of Human Rights.

The European Convention of Human Rights and the United Nation Convention on Human Rights provide for reasonable restrictions to be placed on the fundamental rights of freedom of Speech and Expression.

In Conally vs DPP (UK) http://www.5rb.com/docs/Conolly-v-DPP QBD 2015 20 Feb 2007.pdf   the court observed that:

“A person who sends an indecent or grossly offensive communication for a political or educational purpose will not be guilty of the offence unless it is proved that his purpose was also to cause distress or anxiety. In other words, the nature of the communication may shed light on the defendant’s mens rea. But I do not see how the fact that a communication is political or educational in nature can have any bearing on whether it is indecent or grossly offensive”.

 And further ” the words “grossly offensive” and “indecent” are ordinary English words. They are not used in a special sense in section 1 of the 1988 Act”

In the same case Lord Dyson has observed

What about “for the protection of the rights of others”? Little case-law was cited to us as to what this phrase means. In Chassagnou v France (1999) 29 EHRR 615, 687 para 113, the ECtHR said that the “rights of others” included, but were not restricted to, the Convention rights of others. They said: “It is a different matter where restrictions are imposed on a right or freedom guaranteed by the Convention in order to protect “rights and freedoms” not, as such, enunciated therein. In such a case only indisputable imperatives can justify interference with enjoyment of a Convention right”.

In Jersild v Denmark (1994) 19 EHRR 1, the ECtHR held that there had been a violation of article 10 when three youths were prosecuted for taking part in a television programme about racism in Denmark. The youths made racist remarks during the course of their television interview. The ECtHR found that the programme was not made for the purpose of propagating racist views. The court acknowledged that the remarks would have been “more than insulting to the targeted groups” (para 35) and was clearly of the view that the prosecution by the Danish authorities was aimed at the protection of the “rights of others” ie the victims of racist remarks. The prosecution was to further this legitimate aim.

But the court concluded that it was not necessary in a democratic society. This can be seen clearly at para 37: “Having regard to the foregoing, the reasons adduced in support of the applicant’s conviction and sentence were not sufficient to establish convincingly that the interference thereby occasioned with the enjoyment of his right to freedom of expression was “necessary in a democratic society”; in particular the means Judgment Approved by the court for handing down. Veronica Connelly v Director of Public Prosecutions Draft 22 March 2007 12:54 Page 10 employed were disproportionate to the aim of protecting “the reputation or rights of others”. Accordingly the measures give rise to a breach of Article 10 of the Convention”.

The protection of the right not to be insulted by racist remarks was a legitimate aim within article 10(2). It was a “right of others” which, by implication, must have been considered to be an “indisputable imperative” (to use the language of Chassgnou).

If grossly offensive and menacing are ordinary English words then the meaning which is given to these words must be taken literally. The words can be considered offensive or menacing only if the sender’s purpose was to cause distress or anxiety in the recipient. The message should be malicious in intent. The words of the message should throw light on the reason for the communication. It is part of the investigation and the judge to establish the intent of the sender of the message.

The Court has stated that judicially trained minds cannot come to an agreement on what is offensive and what is menacing and that it is subject to the predilection of the judge. It is precisely for this reason that cases go on appeal from the magistrate to the sessions to the High Court and finally to the Supreme Court.  The belief is that higher the Court greater is the experience of the Judge and more balanced will be the judgment. Now how fair is it to throw out a law just because two judges do not agree to a common interpretation? If this is the raison d’etre for throwing out Section 66 A then most of the existing laws will also have to be thrown out because differing interpretations have been given at different times by different Judges in the same Court.

The words like annoyance, offensive, menacing etc are not vague terms. They have specific meanings as given in the judgment itself. While the meanings are well defined the problem lies in establishing the degree of hurt or annoyance or fear or offense that a person feels on receiving such a communications. This will vary from human to human depending on gender, age, culture, customs, geography, education senstivity etc. It is for this particular reason that these words have not been defined to the point of certainty. It is not possible or desirable to   design a one size fit all shoe. Words which are subjective in nature cannot be legislated upon. It is left to the Court to decide the depth of offense caused and decide accordingly. In that process if judges differ then so be it. The decision of the highest body will prevail. Dismissing Section 66 A on these grounds is not the solution.

The same sense has been communicated in Criminal Appeal 913/2010 in the Supreme Court Judgement Dated:4/28/2010  filed by S.Khushboo vs Kanniammal & Another under Section 499,500 &505.  This judgments highlights the fact that for a charge of defamation to apply the complainant must prove that elements of mens rea and actus reus are present and the remarks must be a direct one against any individual, company, association or body of people.

These observations can also be extended to the interpretation of Section 66A and it provides the necessary protection to any person sending information or message over a computer system or a computer enabled communication system. The Section when read along with the above judgment gives protection to the freedom of speech guaranteed by the Constitution.

  1. These two Constitution Bench decisions bind us and would apply directly on Section 66A. We, therefore, hold that the Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of over breadth.

As already stated earlier Section 66 A does not cover all the information posted or communicated over the net. It is restricted to only that portion of information which a recipient may find hurtful or annoying or offensive or menacing. Extending the section to information over and beyond its purpose, labeling it as sweeping and overly broad and then holding it as unconstitutional is akin to giving a dog a bad name and hanging it for that name.

  1. In this case, it is the converse proposition which would really apply if the learned Additional Solicitor General’s argument is to be accepted. If Section 66A is otherwise invalid, it cannot be saved by an assurance from the learned Additional Solicitor General that it will be administered in a reasonable manner. Governments may come and Governments may go but Section 66A goes on forever. An assurance from the present Government even if carried out faithfully would not bind any successor Government. It must, therefore, be held that Section 66A must be judged on its own merits without any reference to how well it may be administered.

Section 66 A is not an invalid proposition in any manner. The learned Asst. Solicitor General’s assurance to prevent the abuse of law is a direct consequence to the petitioner’s request to repeal the section since it was abused.  The assurance is not a reflection on the validity of the Section. Governments may come and Governments may go but it is the interpretation of the Section in the Supreme Court which will stand till such time as the findings are overturned at a later period of time when another set of Justices view the Section from a different perspective and circumstances. Change is part of human existence.

The requirement for the law was felt and Section 66 A was introduced. Yes the section has been abused in about six incidents. It must be pointed that in all the six incidents the Supreme Court has come to the rescue of the victims which is as it should be. In all the six incidents the role of the lower judiciary is also to be highlighted. A reasonable solution that could have been suggested was to have the lower judiciary educated on the law. If the lower judiciary is not able to appreciate the law then the judge has to be changed, not the law. More stringent punishment can be prescribed for misuse of the law.  Throwing out the law on specious conditions is not a solution.

  1. The argument of the learned Additional Solicitor General on this score is reproduced by us verbatim from one of his written submissions:

“Furthermore it is respectfully submitted that in the event of Hon’ble Court not being satisfied about the constitutional validity of either any expression or apart of the provision, the Doctrine of Severability as enshrined under Article 13 may be resorted to.”

It is unfortunate that the Learned Solicitor General instead of mounting a robust defense of the Section has himself suggested that constitutional validity of any expression could be treated under the Doctrine of Severability by the Supreme Court. This suggestion could only have risen from a lack of conviction on his part on the section. Lack of confidence about one’s own position is half the battle lost even before entering the battlefield. As far as victims are concerned the Asst. Solicitor General has rendered them a signal dis-service.

  1. The present being a case of an Article 19(1)(a) violation, Romesh Thappar’s judgment would apply on all fours. In an Article 19(1)(g) challenge, there is no question of a law being applied for purposes not sanctioned by the Constitution for the simple reason that the eight subject matters of Article 19(2) are conspicuous by their absence in Article 19(6) which only speaks of reasonable restrictions in the interests of the general public. The present is a case where, as has been held above, Section 66A does not fall within any of the subject matters contained in Article 19(2) and the possibility of its being applied for purposes outside those subject matters is clear. We therefore hold that no part of Section 66A is severable and the provision as a whole must be declared unconstitutional.

It has been explained why Section 66 A cannot be declared as unconstitutional in the above paragraphs if these arguments can be accepted then it follows that the above observation by the Hon’ble Supreme Court is also in error. Section 66 A falls squarely in the subject matter of 19(2) and 19(6) since public morality, public order and the Right to life and liberty are addressed in this Section. Section 66 A must be declared to be constitutional.

Par 99 to 101 makes observation on the Procedural infirmity of the Section. Extensive references have been made to the procedures for media and defamation and causing enmity between different religions have been made.  Section 66 A deals only with messages and communication between individuals and groups of individuals on aone to ne basis. It does not deal with information addressed to the public at large. Therefore citing sections from Cr.P.C and applying it to Section 66 A is not relevant or material. The Supreme Court could have observed accordingly. Para 111 of the same judgment contradict the position taken in these paragraphs.

All the arguments cited above apply equally to Section 118 (d) of the K.P. Act of 2011.

I rest my Case.

S.N.Ravichandran

Coimbatore 641 043

29.03.2015.

UNQUOTE

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.

 Naavi

The judgement of the Supreme Court of India in the Shreya Singhal Vs Union of India is notable for the fact that the Court has conspicuously asserted its rights over the judiciary and castigated the law makers for the “Vague and Arbitrary” nature of the law. The Court has felt so upset with the vagueness that it has found it necessary to scrap the section though other options were available.

The petitioner (page 5 of the judgement) claimed that “Unlike Section 66”, Section 66A suffers from the “Vice of Vagueness”. The respondents argued that “There is a presumption in favour of the constitutionality of an enactment and if necessary the Court should make it workable by reading into it or read down the provisions”. It argued that “Mere possibility of abuse cannot be a ground to declare a provision invalid”.

It is obvious by inference that the Court agreed with the petitioner as to the vagueness and the need to scrap the section because it can be abused.

“Freedom of Speech is Paramount”:..We agree

The Court held that “Liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme”.

We cannot agree more with this statement of faith in Democracy though we donot agree with the inference reached.

Core Issue was Different

The judgement goes on to cite many other cases defending the Right of free expression. All these citations only divert our attention since the core issue was not whether we should respect freedom of expression or not, but whether Section 66A by legislative intent or actual words infringed on this right.

“Definition of Information Vs Message”

The Judgement after the prefatory remarks pounces on the definition of “Information” and the fact that the definition of “Information” is all inclusive as per section 2(v) of the Act. This is later used to say that Section 66A attacks “All types of information including scientific, literary etc”. The petitioner’s contention that “Public’s Right to know” is directly affected by Section 66A is immediately accepted and becomes the ground to discredit Section 66A.

The petitioners have failed to notice that Internet is only a medium and infrastructure for carrying and storing information of every kind. It is the World Wide Web and different applications such as an E-Mail, Message Board, Chat, Skype etc which hold content either temporarily or permanently. Section 66A addresses only one type of such content namely “Messages” sent either as E-Mails or those sent using a communication device such as SMS/MMS/WhatsApp etc.

The title to the section 66A says

” Punishment for sending offensive messages through communication service, etc”

We need to question now whether the petitioner considers this as “Vague”? Does it not speak of “Messages”? Does it not speak of “Communication Devices”?

Communication device is defined under Section 2(ha)  which states

“Communication Device” means cell phones, personal digital assistance, or combination of both or any other device used to communicate,send or transmit any text,video, audio, or image

Is this vague and ambiguous? Do we require  a definition for “Messages”?,

Dictionary meaning of “Message” is “a verbal, written, or recorded communication sent to or left for a recipient who cannot be contacted directly.”

The entire section 66A has to be read with the title which refers to messages sent which is as specific as the law can get.

If the Police has wrongly applied Sec 66A aplicable for messages to what is otherwise should be considered as “Publishing” and the petitioner holds out this mistake as the reason to seek scrapping of Section 66A, the Court ought to have in its own wisdom come to the conclusion that Section 66A was not ab-initio applicable for cases such as the petitioner’s cases and hence no decision can be taken on Section 66A. However Court endorsed the mistake of fact on which the petition was based by its judgement.

Another contention of the petitioner was that the offence created by the Section 66A has no proximate relation with any of the eight subject matters contained in 19(2).

The petitioner however forgets that the offence created by Section 66A  does not also have any proximate relationship with 19(1) since “Message” which is a one to one communication is not the subject matter of Article 19(1). It is private speech between two persons or a closed group and cannot be considered as “Public Speech”.

The subject matter referred to under 19(2) which empowers making of law imposing reasonable restrictions include

1. sovereignty and integrity of India,
2.the security of the State,
3.friendly relations with foreign States,
4.public order,
5.decency or morality or
6.in relation to contempt of court,
7. defamation or
8.incitement to an offence

Since Section 66A refers to “Messages” it cannot be proximate to any of these issues in the context of “Freedom of Expression”. It is possible that “Messages” may be part of “Conspiracy” and “Broadcast of Messages” can invoke public disorder, incitement etc. But such aspects must be considered under Section 67, 67A and 67B which applies to “Publishing and Transmitting” of information not under Section 66A.

Section 66A is categorical that it applies to something which a person “Sends”. “Sending” is different from “Publishing”. “Sending of Information” is from one source to a destination. “Publishing Information” means placing it in a form that can be read by others over a period of time by opening the published information set (like opening of a book).

The petitioner failed to distinguish between “Messaging” and “Publication” and mislead the Court into believing that on the Internet both are same. Objections which ought to have been raised under Section 67 or 67A or 67B were wrongly raised, admitted and decided upon under Section 66A.

ITA 2000/8 considered restricting publication only if it is “Obscene” as understood under Sections 67,67A,67B and not otherwise. There is otherwise full freedom of expression. All the present controversies have arisen because people have been interpreting ITA 2000/8 from their understanding of IPC and hence imputing meanings which need not be imputed.

The Court did not recognize and debate the difference between “messaging” and “publishing” such as whether twitter is a message or publishing, whether facebook liking is messaging or publishing. These were the issues on which the mind of the Court should have been applied so that the Cyber World would have been wiser after the judgement. Unfortunately the Court diverted onto “Do we require Freedom of Speech on the Internet” and proceeded to say “Yes”, though this was unnecessary.

The petitioners have also raised an objection that “language used in Section 66A is so vague that neither would an accused person be put on notice as to what exactly is the offence” and the Court seems to agree. This is a wonderful argument and next time a law is to be made, we need to hold a seminar in a jail and understand whether the language would be understood by the criminals.

We would like to know from the petitioners when did law became “Mathematics”?. Law has always been an “Interpretation”. Law cannot be developed like an algorithm such as  2+2 is always equal to 4. To expect that law makers will be able to define offences precisely as to the way it is executed by a criminal betrays lack of knowledge of the field of Cyber Crimes and also dishonesty on the part of whoever claims this can be done in all legal enactments. Such precise specifications can only be found in a patent application and not criminal law. If an attempt is made, then it will create more loop holes in the law enabling criminals escaping all pre-defined definitions.

If law can be  precise where is the need for Courts and more so the lawyers?

The point that a “Person needs to be put on notice what exactly is the offence” is therefore a mischievous argument deserving to be thrown to the dust bin at first glance.

On the other hand the Court gives credence to the petitioner’s argument and proceeds to analyse different interpretations of words such as “offensive”, “Menace”, “annoyance” etc and comes to a conclusion (page 75)

“..it is quite clear that the expressions used in 66A are completely open-ended and undefined”.

I would like the petitioner to reflect if all the expressions used in IPC are properly “Defined”? “Not open ended”?.

Let’s take just an example. We say under IPC death sentence can be given to a murdered in the “Rarest of Rare Cases” or “Evidence should be proved beyond Reasonable Doubt”. Is it possible to “Define” the terms “Rarest of Rare” or ” Reasonable” in such cases? In all those and in many other cases, Judiciary has the responsibility to consider the circumstances on a case to case basis and arrive at their views. Judiciary cannot run away from its responsibility of interpretation by saying “Let the Executive define everything and I will only check and tick”. The argument that law drafting should be precise as to the “definition of crimes” is therefore unacceptable. It is also impossible in an evolving technology space. In fact law should  be flexible for interpretation to accommodate crimes that may arise in the future. When ITA 2000 was drafted, we did not know “Phishing”, “Vishing”, “Advanced Persistent Attacks”, “Man in the Middle Attack” etc. We only knew some thing called “Hacking” and “Virus” the terms was used for most of the offences. Still ITA 2000 held out to cover most of the offences because the offences were defined in general terms and not very specific. In a way we should be proud that there was no need to keep defining cyber crimes and even Section 66 which earlier defined “hacking” was later generalized in ITAA 2008. (It was amusing to note that the judgement refers to Information Technology Amendment Act 2009 in page 1 which is non existent.)

IPC is full of illustrations and examples which have been acquired over a period of time. Why is it not possible to insert such illustrations and examples to ITA 2000/8 to clarify things?. Neither the petitioner nor the Court made an attempt in this regard and was more interested in striking down the section and diluting the law for the next few years until an amendment can be done. Untill then the “Uncertainty” created by the judgement will create more problems and many of them  cannot be solved.

As a result, Indian Cyber Space will remain several years behind what is required for the “Digital India”.

In the process it is the people who will suffer on account of this judgement.

Section 66A is singled out for abuse

The judgement tries to single out Section 66A as an “Evil Section” by citing that Section 66 , Sections 66B to 67B are more precise.  I am unable to understand how the Court can come to such a conclusion.

Under Section 66 the word “Dishonestly” is defined with cross reference to 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”.

This definition is dependent on the meaning of words such as “Intention” and “Wrongful”. What is wrongful for one may not be so for another. What may an intention of a person may not be known even to himself. Then how do we hold Section 66 is a saint and 66A is a devil?

Or take Section 66F which will be frequently invoked from now on for all those offences which were now being wrongly booked under 66A.

 Can we define what is meant by “Striking terror”, “Exceeding authorized access”, “restricted information”( Remember that the victim should know whether something is restricted or not as per the subject judgement), “likely to cause injury”, “restricted information in relation to contempt of court or defamation or incitement to an offence” etc?… These are the terms under which “Life Imprisonment” can be meted out under Section 66F. The petitioners and the Judgement holds out that Section 66F is fine and precise but not Section 66A.

The judgement therefore concludes that “Judicially trained minds can come to diametrically opposite conclusions on the same set of facts in interpreting the words such as offensive, menacing etc, and hence Section 66A must be considered as “Constitutionally Vague”.

Speaking on behalf of Section 66A,  I consider this highly discriminatory since law is always subject to interpretation, differences in opinion is necessary and healthy and vagueness if any is present in all legislations and not only in Section 66A. 

The judgement goes on to add spice on the injury to say that the Section causes “Chilling Effect” etc. The judgement also refused to accept that “possibility of abuse” cannot be a ground for striking down the provision. The Court showed its determination when it said that, “Governments may come and may go, Court cannot save the section based on the assurances of the Government.”…

…. makes a great quote for a sub editor of a news paper but does not reflect the need for a harmonious relationship between Judiciary and the Executive.

Court also refused to consider partial modifications and it would not be satisfied with nothing other than striking down the section. The reason for such a harsh view is difficult to understand except that it sends out a message to the Government who is the boss.

While we congratulate the petitioner for their ability to convince the Court with their own arguments which were not perfect in our opinion, and also note the beneficial aspects of the “Chilling Effect” that the Government of the day cannot take the Courts for granted even when it comes to legislation of the previous Government, we are not convinced that the decision reached in the end was based on a valid foundation built by the petitioners.

Neither Police nor the Petitioner had a clear understanding of the intention of Section 66A and unfortunately, the Court also agreed with the contention of the petitioner.

It is possible that the decision may look like a progressive pro-democratic thought on which the Government can be pulled up and the powers of the Judiciary asserted. Media also might have  gobbled up the decision because it makes a good headline material to say “Court castigates the Government”….

…..But it does not make the decision correct.

Naavi

Ever since the judgement of the Supreme Court on Section 66A was pronounced yesterday there have been discussions all over the media hailing the Court for having upheld the great principle of democracy, viz the “Freedom of Expression”. In the din of this popular perception, the few voices of expression that “The Logic is Fine But the End Reached is Wrong”  have been drowned.

Now we accept that Section 66A is dead and any discussion that it should not have been killed will not change the situation. But as a matter of principle, we feel it is necessary to put out the contrarian view that the “Scrapping of Section 66A was a knee jerk reaction of the Court and missed an opportunity to contributing to an improvement of the law of the land”.

We feel that Supreme Court missed an opportunity to steer the development of Cyber Jurisprudence which was the duty expected of a bench of the highest court of the country looking at “Constitutional Validity” of a section.

To start our discussion we should recognize that the entire case for scrapping of Section 66A was built on the foundation of some of the past cases where Police have arrested innocent persons. Naavi.org has opposed the action of Police in each of the cases repeatedly and there is no need for any misconception that we are against Freedom of Expression or that we are not also rejoicing that the relief felt by the victims of these cases. We would like to go beyond these immediate issues and look at whether it was right for the logic for the judgement to have been built entirely on the injustice apparent in these cases. We shall therefore first discuss these cases and state why these cases should never have been there in the first place under the Section 66A and the Police were wrong in booking these cases under Section 66A. Equally, the Judgement not recognizing that we cannot evaluate Section 66A in the light of these cases was also not correct. Let’s see why.

We shall pick up the cases as discussed in this article in Live mint recalls the prominent cases that prompted the action of Supreme Court. It is good to recall these cases before we analyze the Supreme Court jdugement in greater detail.

Refer: Section 66A: Six Controversial Cases that sparked the debate

1. The origin of the current case can be traced to the first PIL on the issue  filed in 2012 by the law student Shreya Singhal, who sought amendment in section 66A of the act after two girls — Shaheen Dhada and Rinu Shrinivasan — were arrested in Palghar in Thane district after one of them posted a comment against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray’s death and the other ‘liked’ it.

In our article “Section 66A is not meant for Cyber Defamation” and “Mis-perceptions about Section 66A” we have highlighted why the posting made by the Palghar girl on Facebook and the “Clicking on I like” cannot be considered as coming under Section 66A. ITA 2000/8 covers “Publishing” under Section 67 and provides for punishment when the content is “Obscene”. Facebook is “Publishing” and should be covered under Section 67. Section 66A is meant for “Messaging” and hence Facebook posting is not to be considered as “Messaging”. Clicking on “I Like” may be construed as “Messaging” but it is a private message from a “Friend” and cannot constitute “Defamatory Speech”. It was therefore clear that the action initiated in the case by Police was more a reflection of the Police-Politician nexus which had nothing to do with Section 66A and its content.

2. Ravi Srinivasan, arrested for sending a tweet on then finance minister P. Chidambaram’s son Karti A Puducherry-saying, “got reports that Karti Chidambaram has amassed more wealth than Vadra.”  The police sought Srinivasan’s custody for 15 days, but the court declined the request.

This was a case of a “Twitter” which is colloquially considered as a “Message”. But to the extent that the content is posted on the web space and does not fly from the outbox of the sender to the inbox of the receiver, it is also “Publishing” and not “Messaging” and should not have been considered as part of Section 66A. This was again a reflection of the political clout of Mr Chidambaram and Section 66A cannot be discredited.

3. Aseem Trivedi Cartoons: This again was a case of publication and not messaging and was not a subject matter for Secton 66A.  The underlying doubt was that the cartoonist was arrested because he supported Mr Anna Hazare during his anti Government dharna in Mumbai. Again indicating the Police-Politician nexus and not the handiwork of the culprit called Section 66A

4. The Ulhasnagar boy’s case appears to be a case of “Unauthorized Access” under Section 66 and I donot know why it has been ever brought under Section 66A.

5.  The Azam Khan related case is obviously the result of the Police-Politician nexus.

In all the above cases we can therefore conclude that Section 66A was wrongly applied by the Police just as an excuse to cause arrest just because an element of Internet was involved. The police never interpreted Information Technology Act and applied their mind whether the case was fit under the section.

To discredit the section for such inefficiency of the Police indicates lack of application of the mind as to whether the foundation of the case as built by the petitioner was sound or not.

The Court by giving credence to the petitions as an apparent misuse of the vague provisions of Section 66A was perhaps showing sympathy to a student’s PIL effort. The logic however was not strong enough to relate the injustice evident in these cases to the provision of law called “Section 66A”.

Since the foundation to the judgement itself is incorrect, the entire findings are to be considered as debatable.

Naavi

( I request readers to inform me if the above is acceptable from the point of view of “Free Speech”. If there is any possibility that this can be construed as not falling under “Reasonable Restrictions”, I will withdraw the article and also not proceed with further views on the judgement.

I also invite views on whether I am crossing the limits of expression that can be considered as “Contempt of Court” which I declare is not my intention.)

 Related Articles:

Section 66A ruling: Virtually free, not absolutely

Sad day for the pompous

Why scrapping Section 66A may not be in India’s best interests

Sec 66A of IT act scrapped: 5 points observed by Supreme Court

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Supreme Court has set December 2nd as the final  date of hearing  when it will hear all cases related to Section 66A.

Report in Hindu

According to the news report, a Bench of Justices J.Chelameswar and S.A.Bobde will hear the petitioners Shreya Singhal. Common Cause and People’s Union for Civil Liberties. The counsels representing these bodies are Mr Soli Sorabjee, Mr Prashant Bhushan and Mr Sanjay Parikh respectively.

The three petitions have three different prayers. First is that the case on the Palghar girls who were arrested for posting a FaceBook comment and Liking a FaceBook comment be dismissed. Second is that no arrests be made under the section and the third is that the section is unconstitutional.

Let’s analyze each of the three pleas and the likely arguments that may be taken by the different counsels.

1. Palghar Issue:

In this case, one of  the girls comment on her facebook page as follows:

Quote:

‘People like Thackeray are born and they die daily, and one should not observe a ‘bandh‘ for that‘

UnQuote:

One of the other friends clicked “I Like”. Police arrested both under Section 66A and the magistrate committed the girls to judicial custody of 15 days.

A similar issue came up in Pondicherry when a Twitter post by a person called Ravi Srinivasan, a businessman, stated “got reports that Karti chidambaram has amassed more wealth than vadra.” In this case also police went about arresting the person who posted the tweet under Section 66A.

Additionally there are cases on Aseem Trivedi, the Cartoonist and many floating notices to intermediaries under Section 79 demanding removal of content allegedly contravening Section 66A.

Subsequently the Central Government through its “advisory” dated 9th January 2013, advised as follows:

“State Governments are advised that as regard to arrest of any person in complaint registered under section 66A of the Information Technology Act 2000, the concerned police officer of a police station under the State’s jurisdiction may not arrest any person until he/she has obtained prior approval of such arrest, from an officer, not below the rank of the Inspector General of Police in the metropolitan cities or of an officer not below the rank of Deputy Commissioner of Police or Superintendent of Police at the district level as the case may be.”

2. Parikh’s Plea:

According to the report, the plea is only that “no Arrests are to be made without following the guidelines”.  While the above advisory is a “Guideline” it is unlikely to be considered effective since law and order is a state subject and a mere advisory of the above nature will be ignored by the State police.

If any other guideline is required, it can come up as a “Notification” under iTA 2000/8 which should be notified in the Gazette.

3. Soli Sorabjee’s Plea

This plea is likely to focus on whether the provisions of Sec 66A is within the definition of “Reasonable Exclusions” to Civil Liberty guaranteed under Article 19(1) of our Constitution which states:

–(1) All citizens shall have the right

(a) to freedom of speech and expression;…

–(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence

Issues on which Supreme Court needs to ponder:

1. As regards the Palghar issue, the Supreme Court needs to consider if Sec 66A which is applicable to messages and E Mails should also be considered as applicable to Face Book and Twitter. In the process it has to take a view on the difference between “Publishing and Transmitting” Vs “Sending a Message through E Mail or a Communication Device”.

2.As regards the guidelines for arrest, Supreme Court needs to consider what guidelines are required to be issued in this regard and what is the acceptability of the advisory issued in this regard.

3. As regards the constitutionality, Supreme Court needs to look at several angles including whether Sec 66A is actually meant to abridge the constitutional right of “Freedom of Expression” under Article 19 (1) or for any other objective. If the objective of the section is not to restrict the “Freedom of Expression” whether it is necessary to impute such a non existent legislative intent and declare the section invalid and whether in such a process it will defeat the any other objective that the section has set about to do.

Analyzing Section 66A as it exists today:

The Section is titled “Punishment for sending offensive messages through communication service, etc” and states as under

Any person who sends, by means of a computer resource or a communication device
(a) any   information that is grossly offensive or has menacing character; or
(b) any   information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently  by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages
shall be punishable with imprisonment for a term which may extend to  three years and with fine.

 The section consists of three sub sections.  The title as well as the content indicates that it is meant for  “Sending” any information or Electronic Mail or Electronic Mail Message.  Sub section (a) qualifies the nature of the content. Subsection (b) emphasizes “Persistent” sending and Sub Section (c) emphasizes the “Purpose of Sending”.

E Mail is specifically mentioned in Sub Section (c) but the other two sub sections use the term “information”.

Sub section (c) mentions “Electronic Mail” as well as “Electronic Mail Message”. We can presume that the term Electronic Mail Message was meant to address SMS or MMS. However the use of the term “Mail” in  “Electronic Mail Message” has the effect of excluding the SMS or MMS which uses a different protocol than the mail protocol. Today we have several messaging services including What’s App, Instagram etc besides the SMS and MMS and the section does not appear to cover the different forms of messaging under this section. If the term “information” itself had been used in sub section (c) it would have been better. In that case the sub section (c) would have read as follows

any information for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such information

 Since the first para of the section refers to “Sending” by means of a computer resource or a communication device, all the three subsections should be considered as referring to “Sending” and includes e-mails, SMS or Instagrams or any other forms in which information is sent from one to another. “Sending” implies “pushing” as against “Receiving” which implies “Pulling” of the information. 

Does “Facebook posting”, “Facebook liking” and “Tweeting” constitute “Sending”? or “Publishing”? is an important issue that needs to be evaluated by the Supreme Court.  If the “Information” stays on a web server and the recipient visits the web space to view the content, such content is more aptly described as “Publishing” rather than “Sending”. Both Face Book and Twitter are Social networking sites where the user’s content gets displayed for any visitor to see. It therefore appears that applying Section 66A to Palghar Case or Karti Chidambaram’s case was incorrect.

It may be noted that Section 67, 67A and 67B could cover both publishing as well as transmission if the message content can satisfy the requirements of “Obscenity”that these sections try to address. The Palghar and Karti Chidambaram cases are not within the provisions of these sections.

Now let’s see what “Grossly Offensive” and “Menacing” means. “Menacing” is easier to interpret since it should contain some kind of threat, a suggestion that some harm will be caused to the person or property by the person who is sending a message. Netither the Palghar case nor the Karti Chidambaram’s case contains such a threat from the sender.

Sub section adds a requirement that the sender should know that the message he is sending is “Known to be false” and he sends such a message “persistently” with the objective of causing annoyance etc. Criticality here is “persistent” which means that the message should be sent again and again. This does not apply to Facebook and Twitter and can only apply to cases such as sending repeated SMS/MMS messages or e-mail. This is more apt for what we normally consider as “Cyber Stalking” or “Cyber Bullying”. The Palghar or Karti’s case does not fall under this category.

Sub section (c) is distinguished by the requirement “to mislead the addressee about the origin”. This refers  to a typical “Phishing” and most of the “Spam” mails.

Thus Sub sections (b) and (c) address cyber crimes such as Cyber Stalking, Cyber Bullying, Phishing and Spam and if the section is quashed for whatever reasons, these crimes will escape punishment at least under this section. This will be a retrograde step.

Sub Section (a) covers extortion messages and messages which can be classified as “More Offfensive than what is generally offensive”. Some things which we may call “disgusting” can be classified as falling under this section. Such messages if they are “Obscene” are already covered under Section 67/67A/67B. Hence  Sec 66A must be considered as addressing messages which are not obscene but are otherwise more offensive than offensive.  Sub section (a) also has a purpose of addressing certain cyber crimes which escape other sections and hence deserves to be retained. Hence quashing of the section would be undesirable even in this context.

From the above, we can see that Mr Soli Sorabjee would be committing a mistake if he argues for quashing of the section.

It must be remembered that Section 66A was never meant to be used for addressing the issue of “Defamation”. IPC handles this adequately. If “Defamation” occurs with “Electronic Documents” whether it is a posting on a website or an email or a message, then the offence can be covered in IPC read along with Section 4 of ITA 2000/8. Hence the objective of Sec 66A was not to duplicate the provisions of Sec 499 of IPC in the electronic document space. It was only to address the new types of cyber crimes such as phishing, spamming, cyber stalking, cyber bullying etc which neither IPC nor the earlier version of ITA 2000 could address.

The  words “annoyance”  does not amount to “Defamation”. Annoyance is what the recipient of a message experiences. “Defamation” is caused  when a person is insulted before other persons. In a one to one communication, no “Defamation” can take place since insults and insinuations are made directly from the sender to the receiver. unless it is a bulk message which goes to other persons as in a forum, defamation cannot occur. Defamation when a message is sent to persons other than the recipient can be covered under IPC along with recognition of electronic documents under Sec 4 of ITA 2008 in the same way making adverse comments in public can attract defamation in physical space.

If however Police applied Sec 66A in some cases then it was their mistake and is not a reason to change the law.

Further if the issue of “Arrest” under section 66A has to be addressed separately, then it would interfere with other sections of “Cognizability” that ITA 2008 refers to. It is not possible to prevent arrest only under one section unless the number of years of punishment under the section is reduced to less than 3 years. If this is done, then the benefit would flow to other cyber crimes which the section tries to address.

Hence there is no case for either quashing the section or for tinkering the arrest aspects as presented by the two learned counsels in their respective cases. The case on Palghar ladies also lacks substance and deserves to be dismissed as a mistake by the Police in interpreting the law.

 Whatever restrictions on the freedom of expression that the section may imply is justified because such exceptions represent cyber crimes that need to be prevented.

It would be interesting to see if the eminent advocates who argue the case and the misconceptions about the section built by the media are good enough to persuade the Supreme Court to ignore the fact that Sec 66A was meant to address different Cyber crimes other than “Defamation” and hence it cannot infringe the “Freedom of Expression” .

In view of the above it is necessary for the Union Law Ministry and Union Ministry of Communication and Information Technology to implead themselves in the case and defend the need to retain the section and not declare it as unconstitutional. If necessary an “Explanation” can be added to the section to the effect that ” This section is not meant to address “Defamation” as envisaged under Section 499 of IPC”

Naavi

cyberlaw

Section 66A of ITA 2008 has been one of the most abused sections of the Act in recent days. There is also a discussion about the constitutional validity of this section on  whether this section infringes on the constitutional “Right to Freedom of Expression” as provided in Article 19(1) (a) of the Constitution. The discussion has arisen due to the filing of criminal cases in recent days in the case of Ravi Srinivasan of Pondicherry over a tweet, and two ladies in Palghar over postings in Facebook,

Article 19(1)(a) of the constitution is subject to “Reasonable Restrictions” as mentioned in Article 19(2) which provides discretion for any Government to frame and implement laws  infringing on the freedom of expression under the following condition namely,

“in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”

The question therefore is whether Section 66A of ITA 2008 is a legislation framed under the exceptions provided under Article 19(2) of the Constitution.

This discussion would be relevant only if there is an impact of this section 66A on the “Freedom of Expression” under Article 19(1) in the first place. The perception of the community is of course that section 66A does infringe on the “Freedom of Expression” as otherwise the police action in the case of Ravi Srinivasan and the Palghar ladies were unwarranted.

However when we analyze the situation we need to also consider  whether the action of the Police in the above two cases were in fact because the Police considered that Section 66A was an exception under Article 19(1) or simply because they misread the law.

If the Police had misread the law the remedy is not in removing the section but in punishing the Police for “Human Rights Violation” and providing such clarifications as would ensure that in future similar mistakes would not be done.

In this context it becomes necessary to discuss if Section 66A of ITA 2008 was indeed meant to address the situation where a Facebook post or a Twitter post could cause annoyance to another individual and that the person who had expressed the objectionable view could not be protected under Article 19(1).

Section 66A has three parts.

It is reproduced below for immediate reference.

Section 66A: Punishment for sending offensive messages through communication service, etc

Any person who sends, by means of a computer resource or a communication device,-

a) any  information that is grossly offensive or has menacing character; or

b) any   information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently  by making use of such computer resource or a communication device,

c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages

shall be punishable with imprisonment for a term which may extend to two three years and with fine.

Explanation: For the purposes of this section, terms “Electronic mail” and “Electronic Mail Message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message

This section  applies to “Any Person” who “Sends” by means of a computer resource or a communication device, “any Information” or “Electronic Mail” or “Electronic Mail Message”.

It may be noted that this section is applicable to “Messages” and not for “Publishing” a content on a web platform. Under ITA 2008 offenses related to “Publishing” were covered under Sections 67, 67A and 67B and were restricted to content which was “Obscene”.

Then does it mean that ITA 2008 did not address situations where “Defamation” could occur through non obscene content being published on the web as in the case of the above cases?. The clear indication in the legislation is “Yes”. ITA 2008 did not try to address “Defamation” in electronic space except where the content was obscene.

The perception that Section 66A addressed defamation arose from the fact that it referred to “Information that is grossly offensive or menacing” under Section 66A(a)  as well as “information” that could cause “annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will” under Section 66A(b) and “Causing annoyance” under Section 66A(c).

The first time the section was invoked to address defamation was in the Delhi High Court case of E2labs Vs Zone-H.org. In this case the remedy sought was shutting down of a website which allegedly hosted some defamatory content. Since the defendant in this case was a foreigner and chose not to respond to the notices of the Court for reasons of his own, the Court passed an interim order blocking the website which has remained in place permanently since the defendant will never contest the injunction.

The interim judgement has therefore created a perception that the Court agrees that “Defamation” was caused by the publication and hence the site was blocked. This perception provides a sort of legitimacy to the claim that “Section 66A can be invoked when defamatory content is published on the web platform and it does not get restricted by the constitutional rights of freedom of expression”.

It must however be noted that Section 66A was meant to address “Information” that can be “Sent” and not “Information which is static”. Information which is “Sent” is a “message” and is sent from one person to another. It is “Pushed” . On the other hand a content which is “Posted” is  not directed at any person. It is only “Pulled” by persons who have become part of a “Community” who have agreed to exchange information with other members of the community.

A “Facebook” post or a “Twitter Post” falls into this category of “Hosted content” and does not fall into the category of “messages”. They can be dealt with under the Section 499 of IPC and there is no need to invoke Section 66A.

The fact that Section 66A was meant for “messages” is also evident from the fact that Section 66A(b) used he word “Persistently”. This means that if a person is again and again sending a message (which he knows to be false and is sending it with the malicious intention of causing annoyance etc). In a website posting, the content is posted and not sent again and again to another person.

Section 66A(a) does not use the word “Persistently” but it applies only to such messages which can be considered as “Grossly offensive or Menacing”.

Section 66A(c) also does not use the word “Persistently” but it is specifically mentioned that it is addressed to an “Electronic Mail”.

Thus it can be inferred that Section 66A was meant only for “messages” and not for “Content”. This is justifiable since Section 499 may not be apt for “letters sent from one person to another” and also that the web presented the possibility of a higher level of annoyance than the physical equivalent of “Bulk letter mailing” since “Bulk email bombardment” is more likely.

Section 66A addressed the message because there were offences such as Cyber bullying and Cyber Stalking as well as “Spam” which could not be effectively dealt with under Section 499.

In view of the above we can conclude that Section 66A ITA 2008 was never meant to address “Defamation” and never meant to overlap Section 499 of IPC but was meant to address situations which in the cyber space were significant threats and were not addressed effectively by the physical world equivalent addressed by IPC.

If therefore we come to the conclusion that “No change is required in Section 66A” it will be because the section was never meant to address “Defamation” and  exclusions under Article 19(2) of the constitution and not because we endorse the view that Section 66 A is within the constitutional validity of Article 19(2).

Media needs to understand the issues involved and does not misinterpret the views that may be expressed by the Court in this regard.

Naavi