The two member bench of the Supreme Court of India in its decision on 24th march 2015 (Shreya Singhal Vs Union of India [Writ Petition (criminal) 167 of 2012] with other writ petitions, struck down Section 66A of ITA 2000 as unconstitutional.
The reasons adduced for this extreme action was
a) Under the section, information of all kinds such as scientific, literary or artistic value or current events that cause annoyance or inconvenience to some has been roped in to construct an offence. This affects the “Right of People to Know”.
b) Section 66A in creating an offence against persons who use the internet and annoy or cause inconvenience to others very clearly affects the freedom of speech and expression.
c) expressions such as “grossly offensive” or “menacing” used in the section 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
b) The law could not be saved under any of the exceptions provided under Article 19(2)
c) Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.
The decision has attracted positive reactions from many since it has been projected as a decision which protects “Freedom of Expression” under the Constitution.
However, there is a strong alternate opinion that the decision is based on a mistaken impression that the section 66A was meant to curb the freedom of speech and expression as enshrined in the constitution. If we move out of this myth, the decision comes out as “Clearly Erroneous”.
The Week today carries an article from Mr Murali Deora, the ex-Minister of State, Ministry of Communication and IT, in the UPA Government , in which the Minister suggests that we immediately need a new section in place of 66A.
Redrafting ITA 2008 with new amendments is definitely one option. However this is likely to be time consuming. Also, if an exercise to amend ITA 2008 is to be undertaken, then there are many other sections which need to be cleaned up since the precedence set by this decision can threaten the entire Act. We can expect a series of PILs on different sections citing the precedence of this judgement that the law is vague and hence infringes Article 19(1). This will seriously erode the Cyber Security scenario in the country.
Hence there is a need to seek a review of the decision by a larger bench of the Supreme Court. The key points to be raised are
a) A Judgement based on a mistake of fact is void ab-initio. This judgement is a representation of such decision on a mistake of fact.
b) There is a difference between “Publishing” and “Messaging” in the context of internet. The two are not same and has to be distinguished on the basis of the intention of the originator. This has not been done in this case.
c) If what is intended to be a one to one communication is published (released to a third party notice by the addressee) it should be considered as the responsibility of the addressee and not that of the originator. This would be a violation of “Privacy” and has to be handled as such.
d) One to one communication ,one to many communication and placing a content on a blog or website for others to view with or without restrictions need to be distinguished. This was not done in this case.
e) If Police mis-apply a section and cause injustice, the remedy is to pull up the police officers under human rights law and not to dilute the law itself. Abuse of law cannot be a reason to strike down law.
f) “Vagueness” cannot be a blanket reason to strike down the law. There is duty cast upon Courts to interpret law and develop jurisprudence. This has not been done in this case.
I request legal luminaries to let me know if this view is supported and if so any of them would like to launch a review petition in Delhi in the general interest of all those genuine victims of email, SMS and MMS harassment which consists of women, spam victims, phishing victims etc. Victims of leakage of private communication such as the Tatas in the Neera Radia Case as well as in cases such as that of D.K.Ravi in Karnataka are also potential victims of the striking down of Section 66A.