“Judges Were Shocked” says Shreya Singhal..

Shreya Singhal, the 24 year old law student became a celebrity overnight because of the land mark judgement scrapping Section 66A of Information Technology Act 2000 as amended in 2008 (ITA 2008). Though the case was argued by luminaries such as Mr Soli Sorabjee and other senior advocates, the fact that she was a petitioner makes it a great occasion to celebrate.  For a person who comes from a family of lawyers, it is clear that such victories are not very common and she should be happy that it has come at an young age and has the potential to define her future. I heartily congratulate her at her moment of glory.

I would like to however place before the audience my own views on this judgement which unfortunately is at variance with the views of the Judges as well as the petitioner. My views are also against the poular sentiments supported by journalists of all hue and colour. Even Congress which extensively used the section to abuse its political critics and BJP which defended the section in the Court are also singing a welcome tune for the judgement.

Before you read further, I would like to however state that I am and have been a staunch supporter of free speech and in fact I have personally lot at stake on free expression.  In fact this website or blog (and associated websites)  has been used by me since 1998 to express my views which are often at variance with what others hold. There have been occasions I have been supportive or critical of the Government and Government officials, Political parties and Politicians, Banks and its officials and even Courts and Police. At the same time I have assisted the Governments, Police, the Court, the Netizens, and Cyber Crime Victims. There have been two occasions when defamation notices have been served on me and one occasion where the Police threatened me and one occassion when one of my blog posts on another site was blocked by a Delhi High Court order.

Readers should therefore not mistake me for one of those anti-democratic, pro-establishment journalists and try to understand me as a “Netizen Activist” who speaks his mind out whenever some thing wrong is seen in the society.

This introduction, is long though necessary to give the right perspective to what I would like to say. However, it is long enough to take a break before I pass my further comments on the judgement taking a cue from Shreya Singhal’s interview published in ibnlive.in today.

See the Interview here:

In presenting my views, I will rely entirely on my own understanding and I am not necessarily relying on any prior judgements either in India or abroad which might have been given in a certain time and context based on the arguments presented before the Courts in those cases. Some of my friends can add such references if they feel it necessary.


Disclaimer:

I am aware that Indian Judiciary upholds Free speech when it comes to expression of views against other members of public but when it comes to expression of views on the Judiciary, they are extremely sensitive. The Objective of this article is not to criticize the Judiciary but to open its eyes on some of the errors which I personally feel have occurred in this judgement. I accept that I could be wrong and at times during what I propose to write, I may “cause annoyance” though “I donot intend to annoy”.


We can start with an interesting observation made by Ms Shreya when she says that when she initially filed the petition, the Judges said they were shocked and were wondering why no body had filed a PIL until then. These were attributed to the then  Chief Justice and not to the judges who eventually delivered the judgement but it reflected the mood of the senior members of the judiciary. She also says that Justice Altamas Kabir even said that they were considering taking “Suo Moto” action.

These words indicate that some judges had already formed their opinion even before the case was filed and looked at the PIL as an opportunity to express their own views. I agree that the judgement was not delivered by the same judges and also that the judges often make comments which are not necessarily held out in the final opinion, but still this point needs to be taken note of to say that there was a popular view among the judiciary that Section 66A had an adverse impact on “Free Speech”.

Once the case was admitted, it appears that it was a smooth sailing for the hearings which were completed in 3 years less than the time it took for the Government to find a person for the position of Chair Person of the Cyber Appellate tribunal.

The only facts before the Court at this time when the comment was made, was that innocent people had been arrested under the section by Police in Palghar and elsewhere and some of them underwent a brief period of custody. This was of course shocking.

However, just because an investigating police officer adds one section of an act in the FIR based on the recommendations of a public prosecutor or otherwise, it does not become law. The Judges of Supreme Court are not guided by the wisdom of the Police officer who filed an FIR. They could have expressed shock at the arrest but not at the section which caused the arrest.

From all indications, it appears that both Shreya Singhal and the Judges thought that the arrests were made correctly under Section 66A and it was the mistake of the legislators to have introduced a section such as Section 66A into our statute which gave the powers for arrest and conviction of persons for expressing their views on the Internet.

Our basic premise to say that this Judgement is erroneous is this very opinion that Section 66A addressed “Speech” and “Expression” sought to be guaranteed by our Constitution.

We will elaborate more on this in the continuing article.

Our  appreciation is due to the petitioner for the excellent timing of the petition because  she was able to strike the iron when it was hot..

Naavi

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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