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The judgment that silenced Section 66A

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By quashing Section 66A of the IT Act as unconstitutional, the Supreme Court judgment shows us that with the right kind of conviction, it is possible to uncover the importance of free speech as a value unto itself within our larger constitutional scheme. It must allow us to believe that we can now challenge the noxious culture of censorship that pervades the Indian state

The Supreme Court, in Shreya Singhal versus Union of India, has stepped to the fore with a delightful affirmation of the value of free speech and expression, quashing, as unconstitutional, >Section 66A of the Information Technology Act, 2000 (IT Act). Section 66A had attained particular infamy after the arrests by the Mumbai police in November 2012 of two women who had expressed their displeasure at a bandh called in the wake of Shiv Sena chief Bal Thackeray’s death. Since then, several arrests have been made by different State police, of various individuals, for the most benign dissemination of online content.

The latest in the slew of pernicious cases reportedly booked under Section 66A was the arrest of a class 11 student in Uttar Pradesh for posting, on >Facebook, “objectionable” comments apparently attributable to a State Minister. These arrests, aimed at checking even the most harmless cases of contrarianism and dissent, were made possible mostly by the sweeping content of the law. The provision, as is by now well documented, had criminalised the broadcasting of any information through a computer resource or a communication device, which was “grossly offensive” or “menacing” in character, or which, among other things, as much as caused “annoyance,” “inconvenience,” or “obstruction.” In a judgment authored by Justice R.F. Nariman, on behalf of a bench comprising himself and Justice J. Chelameswar, the Court has now declared that Section 66A is not only vague and arbitrary, but that it also “disproportionately invades the right of free speech.”

The right’s scope, the state’s space

This verdict in Shreya Singhal is a hugely important landmark in the Supreme Court’s history for many reasons. It represents a rare instance of the court adopting the extreme step of declaring a censorship law passed by Parliament as altogether illegitimate. But what’s most uplifting about the judgment is that it has explicated to us, with remarkable felicity, the scope of the right available to us to express ourselves freely, and the limited space given to the state in restraining this freedom in only the most exceptional of circumstances. In clarifying the balance between the right and its narrow constraints, the court has struck a vicious blow against the duplicitous stand taken by the state, which consistently represents the right to freedom of speech and expression as a fragile guarantee at best. As Justice Nariman’s opinion has highlighted, the liberty of thought and expression is not merely an aspirational ideal. It is also “a cardinal value that is of paramount significance under our constitutional scheme.”

Not legitimate defences

Article 19(1)(a) of the Constitution guarantees to citizens a right to freedom of speech and expression. The immediately succeeding clause, Article 19(2), however limits this right in allowing the state the power to impose by law reasonable restrictions in the interests, among other things, of the sovereignty and integrity of India, the security of the state, public order, decency or morality, defamation, or incitement to an offence. According to the petitioners in Shreya Singhal, none of these grounds contained in Article 19(2) were capable of being invoked as legitimate defences to the validity of Section 66A of the IT Act. They also argued that the provisions of Section 66A were contrary to basic tenets of a valid criminal law in that they were too vague and incapable of precise definition, amounting therefore to a most insidious form of censorship. Further, in the petitioners’ argument, Section 66A produced a chilling effect that forced people to expurgate their speech and expressions of any form of dissent, howsoever innocuous.

The Supreme Court agreed with the petitioners on each of these arguments. According to the court, none of the grounds, which the state sought to invoke in defending the law, in this case, public order, defamation, incitement to an offence and decency or morality, each of which is contained in Article 19(2), was capable of being justifiably applied. “Any law seeking to impose a restriction on the freedom of speech can only pass muster,” wrote Justice Nariman, “if it is proximately related to any of the eight subject matters set out in Article 19(2).”

Test of danger

Crucially, in rejecting the state’s defence, the court expounded the conditions under which these restrictions could be imposed. For instance, if speech were to be limited on grounds of public order, the law placing such a constraint, the court ruled, has to satisfy a test of clear and present danger. That is any information that is disseminated must contain a tendency to imminently incite or create public disorder, and the information disseminated must be proximately linked to such disorder, for the speech to be restricted. An analogous analysis has been consistently applied by courts in the United States, and, as Justice Nariman points out, American judgments on free speech laws ought to carry “great persuasive value,” in India, since, as a matter of interpretation, the American and Indian Constitution are not as dissimilar on the guarantee of free speech rights, as is popularly believed.

On the purported justification offered by the state on grounds of defamation, incitement to an offence, and decency or morality, under Article 19(2), the Supreme Court, in Shreya Singhal, is pithily dismissive. There is, the court points out, no nexus whatsoever between the criminalisation of “grossly offensive” or “annoying” speech and the restrictions that are permitted under the Constitution, as is rather self evident.

Apart from rejecting the state’s defences under Article 19(2), the court also holds Section 66A unconstitutional for its lack of exactness. It is “obvious that expressions such as “grossly offensive” or “menacing” are so vague,” writes Justice Nariman “that there is no manageable standard by which a person can be said to have committed an offence or not to have committed an offence.” What’s more, according to the court, Section 66A also has the destructive effect of producing a chilling effect on speech in that it tends to not merely impede speech, which is potentially undemocratic, but also innocent communication. Justice Nariman gives us a few examples: “A certain section of a particular community may be grossly offended or annoyed by communications over the internet by “liberal views” – such as the emancipation of women or the abolition of the caste system or whether certain members of a non proselytizing religion should be allowed to bring persons within their fold who are otherwise outside the fold. Each one of these things may be grossly offensive, annoying, inconvenient, insulting or injurious to large sections of particular communities and would fall within the net cast by Section 66A,” he writes. Therefore, the provision, in the court’s belief, was simply indefensible; it contained no immediate nexus with any of the constitutionally sanctioned exceptions to the right to free expression.

Challenging other provisions

The judgment in Shreya Singhal however did not concern itself only with Section 66A. There were other provisions of the IT Act, Section 69A — and its concomitant rules — and Section 79, which were also challenged by the petitioners. The first accords the government the authority to block the transmission of information, including the blocking of websites, when it is necessary or expedient to do so, for among other reasons, the interest of sovereignty and integrity of India, public order or for preventing incitement to the commission of any cognisable offence. And the second grants protection, under certain limited circumstances, to intermediaries (websites such as Facebook and YouTube, for example) for content published by individuals who use their platforms. The court struck neither of these provisions down. It found the law in both instances to contain sufficient safeguards against governmental abuse. Even if one were to consider these aspects of the decision as detrimental, in some way, to our civil liberties, any such concerns, at this juncture, ought to only represent minor quibbles.

Far too often we are deeply critical of our Supreme Court and its decisions. Indeed, the transformation that Professor Upendra Baxi referred to in the backdrop of the movement in the 1980s towards public interest litigation, when he famously remarked that the Supreme Court of India had at long last become the Supreme Court for Indians, was tragically transient. But, in quashing Section 66A, in Shreya Singhal, the Supreme Court has not only given a fresh lease of life to free speech in India, but has also performed its role as a constitutional court for Indians with considerable élan.

Justice Nariman’s judgment shows us that with the right kind of conviction, it is possible to uncover the importance of free speech as a value unto itself within our larger constitutional scheme. That the court has defended the Constitution’s ideals of tolerance with a sense of vivacity and integrity, and that it has provided the jurisprudence of free speech with an enhanced and rare clarity, must give us hope. It must allow us to believe that we can now challenge the noxious culture of censorship that pervades the Indian state. It also shows us that we do not need an American style First Amendment to achieve liberal ideals; what we require, as the court has demonstrated here, is a government that confirms to our own Constitution, which, when viewed in its finest light, affords us the right to freely express ourselves, to dissent and to oppose, to offend and to annoy, free of substantial interference from the state.



SECTION 66A

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(Suhrith Parthasarathy is an advocate in the Madras High Court.)

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Printable version | Feb 18, 2018 4:40:46 PM | http://www.thehindu.com/opinion/lead/the-judgment-that-silenced-section-66a/article7032656.ece