Mr Mahendra Limaye, a practicing advocate from Nagpur who has been active in Cyber Law related litigation as well as many PILs in the domain has reacted to the way journalists have been hailing the recent Supreme Court verdict with these words…
The hysteria shown by activists after the verdict is yet to settle down. Everybody is celebrating it as day of independence of internet. I can only PREY TO GOD “FORGIVE THEM BECAUSE THEY ARE NOT KNOWING WHAT THEY ARE CELEBRATING”.
Mr Limaye has also analysed the Supreme Court judgement in his blog ( Refer here) where he has made many critical observations some of which are reproduced here.
On Informed Citizeny
“Hon. SC has reposed more faith in wisdom of citizens than law makers. Indeed Time will upset the current faith and belief of SC that Free Trade of Ideas on Social platforms is according to the true spirit of Freedom of Speech and Expression. Informed citizeny is indeed a pre condition but Are our citizen really well informed and Digital Literate? Are our young netizens really bothered about whatever is available through this medium? When preferred site for downloading songs is hosted from outside India and due to which huge quantum of revenue is lost by Film Industry, are these citizen be called as Informed? When most of the traffic on internet is related to Pornographic search, are these citizen be called well informed? When Cyber crimes are increasing at rapid pace and in geometric progression Are these citizen be called well informed? Does our informed citizens believe POWER CORRUPTS AND ABSOLUTE POWER ABSOLUTELY? Now as the 66A is repealed these informed citizens will have Absolute Power of expression which hopefully will be utilized with restrain.”
On Discussion, Advocacy and Incitement
“Is there any measuring device available which will tell with certainty that now Incitement level is reached? With the magnitude of users and reach internet can cover and also cultural, linguistic, religious diversities will it be really possible to identify whether the expressions are limited to discussions or advocacy or have they crossed to the level of incitement? And who will be proper Judge to decide?”
Para 14 is very unique one wherein SC has made its observations “A word needs to be said about use of American Judgments in context of 19(1). In virtually every judgment of SC reference has been made to judgments across the Atlantic. IS IT SAFE TO DO SO????
On Function of Citizeny Vs Government
So if government is not supposed to prevent and protect its citizen from falling into errors then what is meaning of Welfare State? The government has brought the section 66A with very genuine intention of protecting rights of its citizen in cyberspace and from falling them into various traps laid by this new medium of communication, which is in its very early days, but government machinery failed miserably in its implementation.
On What may be offensive
By applying the same logic SC has accepted that the terms are open-ended and undefined. In my view open ended terms can be very well defined by the authorities as per case to case basis. Judiciary wanted to reestablish its supremacy in interpretation of statues and does not want to delegate it to any other agency. Have we not observed in many cases from our judiciary where one court interprets in one way and other court reverses the interpretation? Can it not be said that when a thing can be offending to one person his right to retaliate is invaded now? The cases which were before SC were the one’s in which SC viewed from one angle and left other angle totally unseen due to its openness and vagueness but not considering True spirit behind the same.
On Ordinary People and Understanding law
So it would have been more appropriate had SC asked to narrow down the scope of open-ended ,under defined and vague words to finality so that people would have understood it more properly. Even in Para 49, SC maintained that wholesale substitution of provisions as suggested by ASG, is not possible for acceptance
So by examining the entire judgment I feel that only due to open-ended words or vagueness of words Hon SC thought the provisions of Section 66A as unconstitutional. Had it not been the CUT COPY PASTE tendency of our lawmakers and a little application of mind so as to at least define the terms in Section 2 of I T Act, rather than leaving then open and for broader interpretation, there was no flaw in Section 66A. SC has only decided on issue brought before it and still there is ample time for government to learn from mistakes of past. The government should define precisely all the words prior to their insertion in any statute and enact new Section 66A in much simplified form but at the earliest.
Cyberspace can not be left to be ruled by whims and fancies of the netizens and their self consciousness, as it has totally changed the rules of game. Governments may come and go but the possible destruction by such lawlessness in Cyberspace may have severe impact on humanity and probably we would not be alive to witness the same. The aftermath of lawlessness in Cyberspace would be very devastating and which we will be witnessing soon.
I thank Mr Limaye for sharing his views.