Naavi.org

The two member bench of the Supreme Court of India consisting of honourable Justices J.Chelameswar and R.F.Nariman, struck down Section 66A of ITA 2000/8 on March 24, 2015, in their judgement in the batch of petitions lead by Shreya Singhal Vs Union of India on the grounds of it being anti constitutional.

Though this decision was hailed by many as a victory for free speech, Naavi.org considered that the decision represented a mistake on the part of the bench identifying that Section 66A was responsible for the arrest of some innocent persons in certain cases highlighted by different petitioners which were considered by the Court.

According to our perception, the arrests were made by ignorant, uninformed,unintelligent policemen under political pressure and the  Court was unable to call the bluff of the Policemen. They instead endorsed the correctness of their decision, found all the fault on the presence of the section in the statute and killed it.

The fact that the sudden removal of the section has been greeted  as a “Freedom to Abuse” has created a void in law and could have adverse consequences on India’s progress in the digital space has been well recognized.

We suppose even those who hailed the decision as “Victory for Freedom of Speech” will agree that it was unfortunate that offences such as Cyber stalking, Cyber bullying, Spamming and Phishing have been either removed from the books or have been made dependent on IPC.

I suppose even the honourable judges who gave the judgement should have realized by this time that their decision to refuse reading down and opting for striking down was an unwarranted use of excessive judicial force.

As an academician, I am  still unhappy that Supreme Court made a mistake and that has gone on record as a precedent and will haunt us in the days to come. Certain words which the judgement has said on the “Vice of vagueness”, “Judicially Trained minds coming to dramatically opposite conclusions” , and the debatable approach of the Court ignoring the “intent of a section” as expressed in the title and the words by arbitrary interpretations from the definitions clause will be ringing in the Courts in subsequent proceedings as “Precedents” until such time it is modified in a new Judgement. This will proliferate the effect of an erroneous decision for a long time.

Now the ball is before the Government which has to think of the next steps and determine how to respond to the situation they have been pushed into.

It has been reported that the Ministry of Home in the Union Government has taken the first steps to respond with the formation of an internal committee to consider re drafting the provisions.

See news report

Hopefully the Government will find a quick fix solution since the larger issue of comprehensively amending the ITA 2000/8 will take a long time.

In this connection it is possible that the Government may think of an ordinance to introduce a new Section 66A though the opposition as always may keep objecting for their political reasons.

Though the drafting of a new Section 66A through an ordinance will be an easy option for the Government, the Supreme Court taking up a self review and reading down the section would have been a better option to erase the impression that Supreme Court misread the section and came to a wrong decision which was corrected by the new legislation.

However, in the end, it is the goal attained which is important.. though the means to attain were less optimal….

….(With apologies to Mahatma Gandhi who held the “means” as important as the “goals”)

We therefore welcome the move of the Government and urge it to complete the re drafting of the new Section 66A which should address the concerns related to “Offences committed with Messages sent through internet, Communication devices etc”.

While redrafting, the following explanations can be added to the section

1. This section shall address to information which is sent from one person to another using the medium of  internet or any communication device and shall not include content posted on a website or a blog or social media vehicles.

2. “Information” used in this section shall mean only such information that has an effect to deprave and corrupt the minds of the recipient and incite him to contravene any law in force and not such information which are expressions of scientific, literary or such other matters pertaining to the betterment of society.

3.Nothing in this section shall affect the freedom of speech as guaranteed under the Article 19(1) of the Constitution.

4. Sending a “Grossly Offensive” or “Annoying” message in the context of this section means  intentionally sending any communication with words, silence or otherwise that is intended to cause mental anxiety, mental agony or mental disturbance to the recipient beyond a level of tolerance any ordinary prudent person under similar circumstances is considered capable of tolerating and thereby inciting him to commit an offence.

These explanations could also be presented as an addition to a “suggested new draft” which the Government may submit for a “Curative Petition” before the same bench or for a “Review” before a larger bench of the Supreme Court and if accepted, the need for an ordinance, Bill and its notification would be avoided. If required, the Court can “Read down” the section to incorporate these explanations into the section.

This may be the quick and most efficient solution for the problem that has now arisen.

Naavi

Also Read : Section 66A of the IT Act likely to be back in softer avatar

The Advanced Center for Research, Development and Training in Cyber Laws and Forensics, (ACRDTCLF) of the National Law School of India University (NLSUI), Bangalore held a round table on 11th April 2015 to discuss the aftermath of the Supreme Court decision on Shreya Singhal v Union of India  case in which Section 66A of ITA 2008 was struck down.

Several Professors from NLSUI and industry experts participated in the deliberations. NLSUI is in the process of collating the views and developing a white paper on the impact of the decision.

During the deliberations, Professor Nagaratna presented the details of the judgement and her views on the impact. This was followed by a presentation by a research student, Ms Saachi Poudal on the impact of the decision on the society on women and children in particular. Mr Srikumar, former DGP of Karnataka and former CVC provided his views from the law enforcement perspective. Naavi provided his perspective on the jdugement as a long time observer of the Cyber Law scenario. Professor T V Subbarao shared his views as an expert in Constitutional matters along with Professor S.B.N. Prakash. Mr S Balasubramanya of TCS and Mr Ranganath of IBM presented the industry views on the judgement particularly on Section 79. Mr Shivakumar, advocate presented the views from the Human Rights perspective.

All the participants were unanimous in their view that the Judgement was erroneous for multiple reasons> Many felt that the way out is for a new drafting. Naavi indicated that if new law has to be drafted it has to be a comprehensive revision of ITA 2008 and is unlikely to be completed before a couple of years. Alternatives suggested were for filing of a curative petition or a review. Since this was a two member bench decision, it was felt that there is a scope for a review by a larger bench.

NLSUI will consolidate the view after which the future course would be determined.

Naavi

In its judgement on Shreya Singhal Vs the Union of India, the two member bench of the Supreme Court has accused that the Section 66A of ITA 2008 has a chilling effect on the freedom of expression in the country.

It says “Such is the reach of the section and if it is to withstand the test of constitutionality, the chilling effect in free speech would be total”.

These are strong words and coming from the mouth of the Supreme Court, it is a huge indictment of the section.

However with due respect  to the Court, I beg to differ and differ as strongly to say that it is not that Section 66A would have a chilling effect on the society if endorsed, but it is this judgement which will have a chilling effect on the Digital Society if it is not reviewed.

What the judgement has shown is that if the Judges start a trial with a pre-disposition that a certain conclusion is the correct decision , then everything seems to point out to the same direction. Logic appears to flow in everything towards one side of the argument. In the end there is a Deja Vu statement..

This is very much evident in this judgement and it makes a great academic exercise to analyze the judgement.

For example, when the admissibility of the petition was discussed it is reported that the Judges said, “We ourselves wanted to take up this issue”. ..

What they also implied was, Thank you, you have given us an opportunity to say what we always wanted to say … that Freedom of Speech is everything for a democratic society…Internet is a domain where freedom of speech must thrive…etc..

These  are good statements to make and are welcome..But at the same time this also means we are not concerned about Cyber Crimes.. and on the plight of the victims of cyber crimes…Whatever crimes can be committed with free speech on Internet… are to be tolerated… .

What the Court has done through this judgement is that they have considered “All information placed on Internet as Speech protected by Article 19(1) of the Constitution”. Such information may be a website, may be a blog, may be the  Social media such as Facebook and Twitter, may even be the “Clicking of I Like” on the face book page.

In reading this judgement, I am reminded of the story which most of us have heard in our childhood..about  a boy who had prepared for an essay on “Cow” and in the examination. He was asked to write an essay on “Coconut tree” for which he was not prepared. he wrote, ” There was a tall Coconut tree and a Cow was tied to the coconut tree… and went on to write everything else about the Cow”. He passed with flying colours.. as the story goes..

I find that this judgement is similar. The Court wanted to strike down Section 66A because it perhaps in good faith and wisdom felt was the cause for the plight of the Palghar girls, Cartoonists in Lucknow and Kolkata and the Puducherry tweeter. It then started hearing the case and once the hearing was over, wrote down its erudite judgement upholding free speech. Since it wanted some peg to hang the new judgement on which the Court has spoken many many times in the past, it took Section 66A and hanged it.

Without going deep into the judgement in this article, I list down my observations.

1. Section 66A is a very narrow section that addresses only certain type of electronic documents such as E Mails and messages sent through a mobile like device. It is not entirely an Internet matter and includes mobile devices and perhaps a closed network within a corporate intranet. even in this category of messages it picks only on some messages which have the properties such as “Being Grossly offensive or Menacing”, “False and sent persistently”, “Sent to deceive and to mislead the origin of an email”.

Despite this clarity, the Court saw the entire gamut of information in this section and said it affects scientific, literary and other discussion and advocacy. It is clear that the Court jumped to several conclusions not based on the facts before it.

The judgement therefore is ab-initio built on an incorrect perception of the section and its objectives. It was unfortunate that the Government was unable to place its views properly because every body went with the assumption that Police who filed the 10 odd FIRs which were the subject matter of so much animosity on Section 66A, were correct and all the mistake was in the Section itself which was “draconian” and “meant to curb freedom of speech”.

This was therefore a judgement which was heavily influenced based by the prior judgement of the Policemen and not based on an independent assessment.

2. The Court never worried about the fact that if an offensive section is removed, it is the victims of the cyber crimes who would be adversely affected and they are also part of our Citizenry. They are also in much large numbers than the petitioners of this case. If a series of annoying SMS messages saying “I Love You” are sent to a newly married lady at all times of the day including when she is sleeping with her husband, it is unbelievable that this Court declares that to be “Free Speech”.

Tomorrow if that girl commits suicide, it would perhaps be a considered as  victory for the free speech by all those who are hailing this judgement.

I wish the Court wakes up before such a tragedy happens and if such an unfortunate thing happens then it should haunt all those who are today hailing this judgement as a “Land Mark” and upholding the highest principles of democracy.

3. What is surprising is that at many places it appears that the Judgement conveniently picks up points that support its view and forgets points that are not favourable. It is like finding excuses just to reach the pre determined goal. There is no consistency across  the judgement.

At one place it says other sections are less vague than Section 66A  in what appears to be a misplaced faith on other sections. It agrees that Internet presents an intelligible differential with Print and other media but does not agree that there can be laws for the Cyber Space which are different from IPC.

It appears that the Court has complete faith in IPC and if the same words are used in IPC, they are considered precise and  acceptable but not in ITA 2000 where they are considered vague. There is  justification that words such as “annoyance” are part of the word “nuisance” in IPC and are therefore acceptable but not in ITA 2008 where they are used to describe independent offences. I am not sure how  “nuisance” is less vague than “annoyance”.

What is clear however is that the Court is familiar with IPC and not so familiar with technology and ITA 2008 and hence it looks at IPC as clear and ITA 2000 as vague and nebulous. Through out the judgement it is surprising that there are no references to any Computer Abuse Acts of other countries.

4. The judgement discusses at length the concept of “Public Order” just to demolish Section 66A and say the section cannot be saved under that point. But it fails to discuss at length “incitement to an offence”.

My reading is that many criminal acts such as an assault or  murder actually happen because of rage and anger induced on a person by the victim for some reason. For example the father of a girl may resort to murder because the daughter elopes with a boy because he is “annoyed” to such an extent that he commits a criminal act. This is how “annoyance” can be an “incitement to offence”. Similarly annoyance through SMS/E Mail can also incite the recipient to commit an offence.

The Court refuses to even consider such possibilities of how “Annoyance” or “inconvenience” or “insult” or Injury”, danger, obstruction, criminal intimidation, enmity, hatred or illwill etc can lead to an incitement to an offence. If the Court had been able to give adequate weightage to mental aspects of criminals before they commit a crime,  they would have considered that the section 66A  is saved by Article 19(2) under “incitement to offence” clause.

5. The Court simply refuses to exercise its mind and give meaning to expressions such as “persistently”, “Grossly offensive” etc.

For its own reasons which are difficult for us to understand, it resorts to comments such as will 8 times be considered “persistent”?..and so on. Even when other Courts have interpreted words such as “Grossly Offensive”, this Court finds an argument to reject it saying if two judges can differ then there must be some thing wrong with the word.

Have we not heard about two judges of a bench coming to diametrically opposite views on the same set of facts, law and evidences? What is vague in such cases? is it the law or the words used in the law or words used by witnesses?..

Is it not desirable that such different opinions exist even amongst judges? If not, why do we have an appeal Court over turning the verdict of a subordinate court?

In coming to such conclusions as the Court has done,  the Court gives a feeling that there is no consistency in the thinking that flows across the judgement.

6 The final blow to the Section 66A comes with the refusal to read down the section and consider severability. It is as if the Court wants nothing less than the striking down of the section and this is not negotiable though the two other equally contentious aspects of ITA 2000 before the court namely the Section 79(3) and 69A were considered negotiable.

7. What leaves a Chilling effect on the community is a feeling that this judgement has demonstrated that even the Supreme Court can commit gross errors of judgement which we normally associate with the lower Courts.  The utmost faith all of us have in looking upto the Supreme Court of India for delivery of Justice however late it comes and however expensive it is has been lost.Unfrtunately, when a lower Court makes a mistake we hope there is a higher Court to correct it. But if the Supreme Court make a mistake, we have no where to go..

This leaves us in a state of depression that we have a Judiciary which is unable to interpret ITA 2000 beyond what we already know in the form of IPC.

When we think that in the coming days, the Government is pitching for E Commerce led growth, and the same Court has to interpret terms like the Internet of Things, Big Data, Smart Cities and crimes associated with such terms, we wonder where will they be able to search for terms in IPC which they can understand in the context of Cyber Space.

Long long time ago, before the birth of ITA 2000, Naavi  was advocating “Cyber Laws for the Netizens and by the Netizens” for the simple reason that those who donot know what is cyber space may not be able to write suitable laws. Today the Judgement confirms that more than those who draft the laws, if the Judges of the physical space cannot interpret the laws of the cyber space and exhibit a “role set” in meta society laws such as IPC, the future looks bleak.

About two months back, I released an article on Cyber Law Vision 2018 required for India to one of the magazines of a law college. Now after this judgement, it appears that this vision is shattered.

The casualty of this judgement in the long run is the development of our economy in the digital area and the archaic laws which our archaic Courts will be unable to interpret in the new environment. This will in turn will pull down our development. Just as  few years back,  an MNC in Gurugaon pulled out from India and shifted its operations to Australia because they felt that Indian Police cannot interpret Cyber Crimes, the future generation of corporate entities may shift out of India  to countries which provide them an environment of  law and order (which includes judiciary) that they can trust.

In fact, if we have to resurrect this depressing scenario we need to not only upgrade our ability to interpret existing laws but also upgrade our Constitution itself.

I donot think there is any reason that we should not consider the Constitution which was drawn much before the concept of Cyber Space was known should not be amended to include new concepts that are relevant for the cyber age. We need to start discussions in this direction.

I would therefore call upon the Government to consider a Constitutional amendment rather than a simple amendment to ITA 2000/8 to accommodate the needs of the coming society. Without such a basic change in our legal infrastructure, any amendment to ITA 2000/8 would be only a half hearted attempt which is unlikely to bring about any significant change.

I wish the Chief Justice of India recognizes the developing situation and order a suo-moto review of the judgement  to restore the faith and confidence we all have in the Indian judiciary and lost because of this Landmark judgement.

Naavi

Considering the importance of assessing the impact of recent Suprme Court’s decision in the case of Shreya Singhal vs Union of India1 , the Advanced Centre for Research, Development and Training in Cyber Laws and Forensics [ACRDTCLF], National Law School of India University, Bengaluru is conducting a Consultation Programme on the theme “AFTERMATH OF SUPREME COURT’S DECISION IN SHREYA SINGHAL VS UNION OF INDIA” on 11th April 2015 at Bangalore.

The programme aims to come up with a white paper on the programme theme and also propose necessary changes to law and present the same to Department of Electronics and Information Technology, Ministry of Information Technology, Government of India, New Delhi for further action.

Following persons are expected to share their views:

1. Dr. T. V. Subba Rao, Senior Professor, NLSIU

2. Dr. S.B.N Prakash, Senior Professor, NLSIU

3. Dr. V. S. Mallar, Senior Professor, NLSIU

4. Shri. R. Sri kumar, Former DGP, Karnataka

5. Shri. Na. Vijayashankar, Cyber Law Consultant, Bengaluru

6. Shri. M. D. Sharath, Dy S.P., Cyber Police Bengaluru

7. Shri. S. Balasubramanya, Vice President, TCS Bengaluru

8. Shri. Ranganath M. A, Consultant, IBM Bengaluru

9. Dr. Nagarathna. A., A., Chief Investigator, ACRDTCLF, NLSUI

Dr. R. Venkata Rao, Vice Chancellor, NLSIU will be inaugurating the half day workshop.

Naavi

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?

Naavi