The two member bench of Supreme Court of India which gave its judgement on 24th March 2015, scrapping Section 66A of ITA 2008 has given a mortal blow to the concept of Privacy in communications in India.
According to the judgement, (para 20) whatever “information” Section 66A tried to address as a punishable offence to send through a communication device, includes “All information”.
The petitioners referred to the definition of “information” under Section 2(v) of ITA 2000/8 and “noticed” two things. First was that the definition was an all inclusive one and the second was that the definition does not refer to what the content of information could be. While making the statement that Section 66A addresses “All Information”, the petitioners were refering to the definition of “information” in the definition section and there was nothing surprising that it was an all inclusive one. It could be nothing else.
Where the petitioners played a dirty and dishonest trick was when they said that Section 66A referred to “All information” when in reality it focussed on a narrow type of information.
What was appalling however was that the learned judges accepted this fraudulent statement of the petitioner and said “Petitioners are correct in saying that the public right to know is directly affected by Section 66A….. Information of all kinds is roped in (ed: by Section 66A) -such information may have scientific, literary or artistic value, it may be obscene or seditious. It is clear that the right of people to know-the market place of ideas-which the internet provides to persons of all kinds is what attracts Section 66A”
I am at a loss to know from where did the Court jump to such conclusions which have no basis in the language used in the section.
Firstly the title to Section 66A says ” Punishment for sending offensive messages through Communication device etc..”.
Then under 66A (a) it starts with the words “any information that is grossly offensive or has menacing character“.
.. does this include scientific information, literary information, market place of ideas?…
Then under Section 66A (b), it starts with “any information which he knows to be false..”.. This again is not “all information” but only such information which the sender knows to be false and sends it deliberately with a malicious intention to cause annoyance, inconvenience etc, that too not just once but “persistently”.
..how can you not make such information punishable?
Where did the judges see here “all information” ..whether true or false, whether scientific or literary.. etc?.. Is it just a figment of imagination with the hope that no body would read the judgement closely?
Again under subsection 66A(c) it starts with the words “any electronic mail or electronic mail message”… sent for causing annoyance etc… or to deceive or to mislead the addressee..about the origin of the messages…
..how can you not make such information punishable?..and give protection under the constitution?
Where did the Judges see here information that is part of the public’s right to know? Is an electronic mail an open book for the community?
It is clear that the Court has simply referred to the word “information” without considering the associated words such as “any”, “false”, “sent from a communication device”, “misleading the addressee” etc and come to a grand conclusion that the section addresses “Speech” the freedom to disseminate which is guaranteed by Article 19(1).
This conclusion poses a serious challenge to our intelligence and understanding of the drafting language and teaches us how to selectively read a section and derive erudite meanings. Perhaps this will have to be dealt with by law schools at great length to improve our legal education.
Leaving aside the challenge of education to the future, let us now accept the precedent set by the Court that the kind of information that Section 66A addressed came within the boundaries of “Freedom of Speech”. Consequent to this decision, whenever I send a SMS through a communication device, or a WhatsApp message to my friend’s group or an e-mail to my boss, I am dealing with content on which the “Public have a right to know”.
Hurray! all those journalists who hailed this judgement as “Landmark” and victory for “Democracy” can jump with joy that their black berry encrypted messages are now my “right to know”.
Poor Mr Ratan Tata, his case on Neera Radia tapes where he is fighting for his right to privacy has been demolished by Shreya Singhal’s brilliant argument that “any message sent through a communication device is an information and the public have a right to know” .
In the light of this judgement, India can drop its attempt to pass a “Privacy Law” and Nasscom can inform their European Union business contacts that India does not recognize Privacy since we are an emancipated democracy where any e-mail and SMS is “Public Right to Know …Dump your data protection requirements to the Indian Ocean..”
We are entering an Utopia of freedom and highest level of democracy …thanks to this judgement!
I suppose I can now file an RTI application to know what are the SMS messages exchanged between Rahul Gandhi and Sonia Gandhi and find out where did he retreat to and meditate and attain the great wisdom ?..or
Should we tell the Karnataka High Court that the SMS messages between late D K Ravi and the IAS colleague now are coming under “Public Right to Know” and no objection can be made that they were “leaked”? or
Should we say all this is simply ridiculous and the real fact is that the judgement was an honest mistake by judges who were mislead by the petitioners and a weak defense counsel ?
….and the Chief Justice of India should immediately order a suo-moto review?