This news report in Deccan Herald (25/3/2015) does not require any comments.
We will see more such news in the days to come when the effect of scrapping of Section 66A starts taking its effect. People who are rejoicing the scrapping of Section 66A are unmindful of the beneficial aspects of the section. The Supreme Court in a bid to asset its superiority over the Government chose to scrap the section instead of suggesting changes or reading it down.
Naavi
The judgement of the Supreme Court of India in the Shreya Singhal Vs Union of India is notable for the fact that the Court has conspicuously asserted its rights over the judiciary and castigated the law makers for the “Vague and Arbitrary” nature of the law. The Court has felt so upset with the vagueness that it has found it necessary to scrap the section though other options were available.
The petitioner (page 5 of the judgement) claimed that “Unlike Section 66”, Section 66A suffers from the “Vice of Vagueness”. The respondents argued that “There is a presumption in favour of the constitutionality of an enactment and if necessary the Court should make it workable by reading into it or read down the provisions”. It argued that “Mere possibility of abuse cannot be a ground to declare a provision invalid”.
It is obvious by inference that the Court agreed with the petitioner as to the vagueness and the need to scrap the section because it can be abused.
“Freedom of Speech is Paramount”:..We agree
The Court held that “Liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme”.
We cannot agree more with this statement of faith in Democracy though we donot agree with the inference reached.
Core Issue was Different
The judgement goes on to cite many other cases defending the Right of free expression. All these citations only divert our attention since the core issue was not whether we should respect freedom of expression or not, but whether Section 66A by legislative intent or actual words infringed on this right.
“Definition of Information Vs Message”
The Judgement after the prefatory remarks pounces on the definition of “Information” and the fact that the definition of “Information” is all inclusive as per section 2(v) of the Act. This is later used to say that Section 66A attacks “All types of information including scientific, literary etc”. The petitioner’s contention that “Public’s Right to know” is directly affected by Section 66A is immediately accepted and becomes the ground to discredit Section 66A.
The petitioners have failed to notice that Internet is only a medium and infrastructure for carrying and storing information of every kind. It is the World Wide Web and different applications such as an E-Mail, Message Board, Chat, Skype etc which hold content either temporarily or permanently. Section 66A addresses only one type of such content namely “Messages” sent either as E-Mails or those sent using a communication device such as SMS/MMS/WhatsApp etc.
The title to the section 66A says
” Punishment for sending offensive messages through communication service, etc”
We need to question now whether the petitioner considers this as “Vague”? Does it not speak of “Messages”? Does it not speak of “Communication Devices”?
Communication device is defined under Section 2(ha) which states
“Communication Device” means cell phones, personal digital assistance, or combination of both or any other device used to communicate,send or transmit any text,video, audio, or image
Is this vague and ambiguous? Do we require a definition for “Messages”?,
Dictionary meaning of “Message” is “a verbal, written, or recorded communication sent to or left for a recipient who cannot be contacted directly.”
The entire section 66A has to be read with the title which refers to messages sent which is as specific as the law can get.
If the Police has wrongly applied Sec 66A aplicable for messages to what is otherwise should be considered as “Publishing” and the petitioner holds out this mistake as the reason to seek scrapping of Section 66A, the Court ought to have in its own wisdom come to the conclusion that Section 66A was not ab-initio applicable for cases such as the petitioner’s cases and hence no decision can be taken on Section 66A. However Court endorsed the mistake of fact on which the petition was based by its judgement.
Another contention of the petitioner was that the offence created by the Section 66A has no proximate relation with any of the eight subject matters contained in 19(2).
The petitioner however forgets that the offence created by Section 66A does not also have any proximate relationship with 19(1) since “Message” which is a one to one communication is not the subject matter of Article 19(1). It is private speech between two persons or a closed group and cannot be considered as “Public Speech”.
The subject matter referred to under 19(2) which empowers making of law imposing reasonable restrictions include
1. sovereignty and integrity of India,
2.the security of the State,
3.friendly relations with foreign States,
4.public order,
5.decency or morality or
6.in relation to contempt of court,
7. defamation or
8.incitement to an offence
Since Section 66A refers to “Messages” it cannot be proximate to any of these issues in the context of “Freedom of Expression”. It is possible that “Messages” may be part of “Conspiracy” and “Broadcast of Messages” can invoke public disorder, incitement etc. But such aspects must be considered under Section 67, 67A and 67B which applies to “Publishing and Transmitting” of information not under Section 66A.
Section 66A is categorical that it applies to something which a person “Sends”. “Sending” is different from “Publishing”. “Sending of Information” is from one source to a destination. “Publishing Information” means placing it in a form that can be read by others over a period of time by opening the published information set (like opening of a book).
The petitioner failed to distinguish between “Messaging” and “Publication” and mislead the Court into believing that on the Internet both are same. Objections which ought to have been raised under Section 67 or 67A or 67B were wrongly raised, admitted and decided upon under Section 66A.
ITA 2000/8 considered restricting publication only if it is “Obscene” as understood under Sections 67,67A,67B and not otherwise. There is otherwise full freedom of expression. All the present controversies have arisen because people have been interpreting ITA 2000/8 from their understanding of IPC and hence imputing meanings which need not be imputed.
The Court did not recognize and debate the difference between “messaging” and “publishing” such as whether twitter is a message or publishing, whether facebook liking is messaging or publishing. These were the issues on which the mind of the Court should have been applied so that the Cyber World would have been wiser after the judgement. Unfortunately the Court diverted onto “Do we require Freedom of Speech on the Internet” and proceeded to say “Yes”, though this was unnecessary.
The petitioners have also raised an objection that “language used in Section 66A is so vague that neither would an accused person be put on notice as to what exactly is the offence” and the Court seems to agree. This is a wonderful argument and next time a law is to be made, we need to hold a seminar in a jail and understand whether the language would be understood by the criminals.
We would like to know from the petitioners when did law became “Mathematics”?. Law has always been an “Interpretation”. Law cannot be developed like an algorithm such as 2+2 is always equal to 4. To expect that law makers will be able to define offences precisely as to the way it is executed by a criminal betrays lack of knowledge of the field of Cyber Crimes and also dishonesty on the part of whoever claims this can be done in all legal enactments. Such precise specifications can only be found in a patent application and not criminal law. If an attempt is made, then it will create more loop holes in the law enabling criminals escaping all pre-defined definitions.
If law can be precise where is the need for Courts and more so the lawyers?
The point that a “Person needs to be put on notice what exactly is the offence” is therefore a mischievous argument deserving to be thrown to the dust bin at first glance.
On the other hand the Court gives credence to the petitioner’s argument and proceeds to analyse different interpretations of words such as “offensive”, “Menace”, “annoyance” etc and comes to a conclusion (page 75)
“..it is quite clear that the expressions used in 66A are completely open-ended and undefined”.
I would like the petitioner to reflect if all the expressions used in IPC are properly “Defined”? “Not open ended”?.
Let’s take just an example. We say under IPC death sentence can be given to a murdered in the “Rarest of Rare Cases” or “Evidence should be proved beyond Reasonable Doubt”. Is it possible to “Define” the terms “Rarest of Rare” or ” Reasonable” in such cases? In all those and in many other cases, Judiciary has the responsibility to consider the circumstances on a case to case basis and arrive at their views. Judiciary cannot run away from its responsibility of interpretation by saying “Let the Executive define everything and I will only check and tick”. The argument that law drafting should be precise as to the “definition of crimes” is therefore unacceptable. It is also impossible in an evolving technology space. In fact law should be flexible for interpretation to accommodate crimes that may arise in the future. When ITA 2000 was drafted, we did not know “Phishing”, “Vishing”, “Advanced Persistent Attacks”, “Man in the Middle Attack” etc. We only knew some thing called “Hacking” and “Virus” the terms was used for most of the offences. Still ITA 2000 held out to cover most of the offences because the offences were defined in general terms and not very specific. In a way we should be proud that there was no need to keep defining cyber crimes and even Section 66 which earlier defined “hacking” was later generalized in ITAA 2008. (It was amusing to note that the judgement refers to Information Technology Amendment Act 2009 in page 1 which is non existent.)
IPC is full of illustrations and examples which have been acquired over a period of time. Why is it not possible to insert such illustrations and examples to ITA 2000/8 to clarify things?. Neither the petitioner nor the Court made an attempt in this regard and was more interested in striking down the section and diluting the law for the next few years until an amendment can be done. Untill then the “Uncertainty” created by the judgement will create more problems and many of them cannot be solved.
As a result, Indian Cyber Space will remain several years behind what is required for the “Digital India”.
In the process it is the people who will suffer on account of this judgement.
Section 66A is singled out for abuse
The judgement tries to single out Section 66A as an “Evil Section” by citing that Section 66 , Sections 66B to 67B are more precise. I am unable to understand how the Court can come to such a conclusion.
Under Section 66 the word “Dishonestly” is defined with cross reference to IPC as -Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”.
This definition is dependent on the meaning of words such as “Intention” and “Wrongful”. What is wrongful for one may not be so for another. What may an intention of a person may not be known even to himself. Then how do we hold Section 66 is a saint and 66A is a devil?
Or take Section 66F which will be frequently invoked from now on for all those offences which were now being wrongly booked under 66A.
Can we define what is meant by “Striking terror”, “Exceeding authorized access”, “restricted information”( Remember that the victim should know whether something is restricted or not as per the subject judgement), “likely to cause injury”, “restricted information in relation to contempt of court or defamation or incitement to an offence” etc?… These are the terms under which “Life Imprisonment” can be meted out under Section 66F. The petitioners and the Judgement holds out that Section 66F is fine and precise but not Section 66A.
The judgement therefore concludes that “Judicially trained minds can come to diametrically opposite conclusions on the same set of facts in interpreting the words such as offensive, menacing etc, and hence Section 66A must be considered as “Constitutionally Vague”.
Speaking on behalf of Section 66A, I consider this highly discriminatory since law is always subject to interpretation, differences in opinion is necessary and healthy and vagueness if any is present in all legislations and not only in Section 66A.
The judgement goes on to add spice on the injury to say that the Section causes “Chilling Effect” etc. The judgement also refused to accept that “possibility of abuse” cannot be a ground for striking down the provision. The Court showed its determination when it said that, “Governments may come and may go, Court cannot save the section based on the assurances of the Government.”…
…. makes a great quote for a sub editor of a news paper but does not reflect the need for a harmonious relationship between Judiciary and the Executive.
Court also refused to consider partial modifications and it would not be satisfied with nothing other than striking down the section. The reason for such a harsh view is difficult to understand except that it sends out a message to the Government who is the boss.
While we congratulate the petitioner for their ability to convince the Court with their own arguments which were not perfect in our opinion, and also note the beneficial aspects of the “Chilling Effect” that the Government of the day cannot take the Courts for granted even when it comes to legislation of the previous Government, we are not convinced that the decision reached in the end was based on a valid foundation built by the petitioners.
Neither Police nor the Petitioner had a clear understanding of the intention of Section 66A and unfortunately, the Court also agreed with the contention of the petitioner.
It is possible that the decision may look like a progressive pro-democratic thought on which the Government can be pulled up and the powers of the Judiciary asserted. Media also might have gobbled up the decision because it makes a good headline material to say “Court castigates the Government”….
…..But it does not make the decision correct.
Naavi
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.
Refer: Section 66A: Six Controversial Cases that sparked the debate
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.
Naavi
( 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.)
Related Articles:
Section 66A ruling: Virtually free, not absolutely
Why scrapping Section 66A may not be in India’s best interests
Sec 66A of IT act scrapped: 5 points observed by Supreme Court
Finally Supreme Court has struck down Section 66A as “Unconstitutional”. At the same time it has upheld the validity of Section 69 and Section 79 (intermediary rules).
COPY OF SUPREME COURT JUDGEMENT
This has been hailed as a victory for the free speech. I do agree that in the case of those who were wrongly booked under Section 66A, it is a huge relief. This includes people like Aseem Trivedi, Ravi Srinivasan and others who were victimized for political reasons.
However the perception that Section 66A was draconian was a creation of the Police and Politicians and what has followed as a Supreme Court decision is a vindication of this perception.
It is unfortunate that the Supreme Court has not considered the section with due consideration to other aspects of the section such as Cyber Bullying, Cyber Stalking , Phishing etc which were also part of the section. The Government has also failed to put its views properly because there was no proper conviction behind their arguments.
While I fully endorse the free speech rights, what I oppose is the view that Section 66A was meant to curb free speech. This will create a wrong precedent that whenever Police donot understand a provision of law and mis apply it, there will be demand for removal of the law itself.
We shall debate the issue in greater detail once more information becomes available.
Naavi
Times of India has reported a story today from Surat (Refer: Decoder of Secret Information stolen..) in which it is reported that a precious decoder used by Police to decode encrypted messages has been stolen.
The report states “The device which is of the size of a briefcase can work anywhere in the world. Once turned on, it receives encrypted messages and translates it into readable form. The device was stolen during early hours on March 14 and police registered a theft complaint“
It is necessary to recognize that this is not a simple “Theft” as the report makes it out to be. It can be considered as an offence under Section 66B since the device may be considered as a “Computer” under the definition used in ITA 2000/8.
More importantly the device can be used for committing a “Terrorist Act”, the theft can be considered as an “Attempt to Commit Cyber Terrorism under Section 66F of ITA 2008”.
Section 66B has 3 year imprisonment and Section 66F has “Life imprisonment” as possible punishment. In the event an ordinary thief (not a Naxalite) is involved in the crime, he should think of returning the device and surrendering to avoid the life imprisonment.
Gujarat Government may consider releasing an advertisement inviting surrender and also announcing an incentive to any informers just as in the case of a terrorist event.
Naavi
China Banking Regulations Commission (CBRC) has notified guidelines to the Banking industry to use “Secure and Controllable Technology” to strengthen the Internet based Banking system. This guideline has the potential to bring significant changes to the IT industry in China and also the vendors from outside China.
According to the guideline it would be mandatory for Banks in China to use “Secure and Controllable IT Products at a minimum rate of 15% increase each year and to reach 75% by 2019. The criteria for determining the status of a product as “Secure and Controllable” have been detailed in the guideline and includes the following.
1. IT Vendors are required to establish own R&D service cetners in China
2. Source code should be filed with CBRC
3. Risk of Product supply chain should be controllable. (i.o.w. there could be a need for more local production in the entire supply chain)
4.The IP rights in respect of certain products could be subordinated to the local requirements. (i.o.w. provisions similar to compulsory licensing may be used)
As a result of these regulations, it would be necessary for the following:
1.Supplier/Service Contracts will have to incorporate necessary compliance clauses.
2. Banks will have to deploy 5% of their R&D budget on deployment of Secure and Controllable IT products
3. Banks need to subject themselves to an annual audit by CBRC to determine compliance.
As a result of these changes, Indian IT companies having operations in China with exposure to Banking industry need to be prepared for a compliance related modification of their business contracts. If they fail to adapt, the supply contracts may be terminated.
I think RBI needs to pick up a few lessons from these guidelines since they have mindlessly allowed domination of Chinese products in the Indian Banking industry exposing the country to a great disadvantage in the event of a Cyber War. Banks should also understand that there is national interest beyond the need to increase their bottom line.
We remember that during the UPA regime, a Security Certification Center was established under the guidance of IISC Bangalore to test IT products from China in particular which were suspected to have OEM-back doors, but was actually sponsored by Huawaei !
I hope the National Cyber Security team in India takes note of these developments and initiate appropriate actions.
REFER:
China Banking IT Regulation Tightened Up
China Issues new CBRC guidelines
CBRC makes life difficult for MNC vendors
Naavi
