Guest Post: Unconstitutional Laws and Non-Citizens

(In this guest post, Vikram Hegdea Delhi-based Supreme Court lawyer, discusses how Section 66A of the IT Act, which was struck down by the Supreme Court in Shreya Singhal’s Case, nonetheless continues to exist insofar as non-citizens are concerned)

For those who happened to have been living under a rock at the relevant time, Section 66A of the Information Technology Act, 2000 was struck down by the Supreme Court in Shreya Singhal in March 2015. The decision has been widely praised, with even the grumbles about the decision being that it didn’t do enough[1] and not that it did wrong. While the general celebratory consensus, is that this decision has sounded the death knell of Section 66A and all its malice, an old anomaly in the constitutional provision for freedom of speech may have the effect of commuting the death sentence of Section 66A to a banishment from India, but free to haunt foreigners. Shorn of comedic bombast, this means that while 66A is struck down as far as citizens of India are concerned, it may still survive as against foreign persons.

To improve the SEO value of this post, and also for ready reference, we may extract some provisions of the Constitution of India with selective outrage supplied emphasis:

Article 13. Laws inconsistent with or in derogation of the fundamental rights.—

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

Article 19. Protection of certain rights regarding freedom of speech, etc.—

(1) All citizens shall have the right—

(a) to freedom of speech and expression;

Now coming back to the Shreya Singhal case, the petitioners contended that Section 66A, in addition to being violative of Article 19, was also violative of Article 14[2]. The contravention of Article 14, it was argued, arose from the fact that the ingredients of the offence are vague and thus arbitrary. It was also argued that there is no intelligible differentia between the medium of print, broadcast and live speech as opposed to speech on the internet. The Court while holding that Section 66A is violative of Article 19(1)(a), being vague and overbroad, held that the intelligible differentia in the case of speech on the internet is clear and therefore the challenge to the provision under Article 14 must fail.[3] [Editor’s Note: My own reading is that the Court rejected an Article 14 challenge insofar as the internet is a space where certain specific offences exist, such as phishing, spam mails, cyber theft etc., which have no offline equivalents. Consequently, there can be a law framed to catch such offences; however, a law cannot impose different standards upon online speech, based upon spurious considerations such as the speed, or extent, to which online material can be disseminated) The conclusion of that judgment unequivocally states that Section 66A is struck down as violative of Article 19(1)(a).

Rights under Article 19[4], are available only to “citizens”. It has been urged by some that this means that only a citizen can challenge a legislation as violative of Article 19 and not a non-citizen, but once a law is struck down for violation of Article 19, the law is completely void, even as regards non-citizens. The judgment of the Constitution Bench of the Supreme Court in State of Gujarat v. Shri Ambica Mills says otherwise. The court, taking into account the phrase “to the extent of the contravention” in Article 13(2), expressly held

“[L]aw offending article 19, remains operative as against non- citizens as it is not in contravention of any of their fundamental rights.”

Seen in this light, the effect of the Shreya Singhal judgment is that Section 66A is void only as against citizens and not as against non-citizens. When this line of thought was voiced on fora on which freedom was enhanced by the judgment in question, questions were raised as to whether this meant that Section 66A was still available against non-citizens, such as corporates and other non-natural persons. The answer to that would lie inter alia in Bennet Coleman v. Union of India[5] where it was held that the shareholders exercise their rights under Article 19(1)(a) through the juristic person of the company and thus where the shareholders were citizens, their company was protected. However, as regards companies where the shareholders are not Indian, Section 66A would still apply.[6]

It is now time to ask ourselves an important question.

“What about 1984?”

That is the year in which the Law Commission of India examined and published a report on this very issue. While the Law Commission recommended that Article 19 be amended by adding an explanation some non-natural persons would be deemed “citizens” for the purpose of Article 19. However, this was limited to entities that have the character of “Indianness”. The recommendation has not yet been acted upon.

While I am aware of at least one legal proceeding where, post the judgment in Shreya Singhal, Section 66A has been applied to a foreign company, that dispute is currently at the lowest level in the judicial hierarchy. For a direct answer from the Courts on this point, we may have to wait.

[1] The resident author of this blog, in his excellent book Offend, Shock, or Disturb, states that the part of the order reading down Section 79 “is not entirely satisfactory”.

[2] Article 14, not being very important to our enquiry is treated unequally here and is consigned to a footnote: Equality before law.—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

[3] I don’t know if and why the rational nexus angle was not raised and at this point am too afraid to ask.

[4] As also Articles 15, 16 and 29.

[5] The long list of cases supporting this proposition includes Chiranjit Lal Chowdhury, Sakal Newspapers, R.C. Cooper etc.

[6] I offer generous help in this regard. If the management of a foreign company such as Google or Facebook wishes that its rights under 19(1)(a) be protected, they can ensure the same by transferring a significant chunk of shares in those companies to me.

 

Advertisements

5 Comments

Filed under Free Speech, IT Act

5 responses to “Guest Post: Unconstitutional Laws and Non-Citizens

  1. Mangesh

    “(S)purious considerations such as the speed, or extent, to which online material can be disseminated.” I disagree. Back in 1990s, there was a case in Pune wherein a married woman allegedly committed suicide within three months of marriage. Her husband and parents-in-laws were immediately arrested. A woman’s organization in Pune went to town, pronouncing a guilty verdict, staging a demonstration in front of the husband’s house and demanding that the accused be denied bail. Three years later, all of them were acquitted. Prosecution could not come up with even a shred of evidence regarding the fact of suicide or cruelty. The case generated considerable adverse publicity for the accused family in the local press, damaging its reputation. Fortunately, the damage was largely restricted to Pune. I can well imagine what would have happened in the context of today’s online world. The damage to the family’s reputation would have been universal and complete – with “breaking news” by TV channels all over India and online onslaught.
    Recently, two Haryana boys allegedly harassed two girls on a bus and the girls immediately retaliated. The video went viral online. Haryana Govt. announced that the girls would be honoured on the Republic Day. One of the boys was selected by the Indian Army. His selection was revoked as “the Indian Army has no place for such molesters.” Later, doubts surfaced reg. the true version. I don’t repeat the entire facts as these can be easily found online.
    In addition to speed and extent, the near permanent existence of such material online also means that online dissemination is different and this is a difference of kind. Any Art. 14 analysis must contend with this.

  2. Nice Hegde! Could not resist but see how times have changed! from criticism every other law article is resorting to Ray! Need i remember the readers of the bench in in Coleman and who authored the majority opinion! “history has many cunning passages”!

  3. pilidlao

    Scope of unconstitutionality is something that attention is not often paid to; so this is an interesting post. The US system of distinguishing between facial and as-applied challenges can be somewhat helpful though there is considerable debate & controversy even there – the former requires the terms of the statute to be invalid under *all* circumstances and the factual matrix of a particular instance is therefore less pertinent thus setting a much higher bar than the latter where only a sliver of instances might be void. Upon reflection, contrary to what I mentioned on twitter, I now think infringement of FR could well be challenged on either ground under art.32 (especially if it is a batch of writs that are being dealt with) but it would be really helpful for the SC to specifically take note in its judgment which one is being dealt with so that the scope of the decision is clear.

  4. Love footnote 6! Wish more articles had a sense of humour!

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s