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.
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.
( 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.)