Tag Archives: S. 66A

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.

 

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Two Arguments against the Constitutionality of S. 66A

(This post first appeared on the CIS blog, here)

In the immediate aftermath of the elections, free speech issues have come to the fore again. In Goa, a Facebook user was summoned for a post warning a second holocaust if Modi was elected to power. In Karnataka, a MBA student was likewise arrested for circulating an MMS that showed Modi’s face morphed onto a corpse, with the slogan “Abki baar antim sanskaar”. These arrests have reopened the debate about the constitutional validity of Section 66A of the IT Act, which is the legal provision governing online speech in India. Section 66A criminalises, among other things, the sending of information that is “grossly offensive or menacing in character” or causes “annoyance or inconvenience”. The two instances cited above raise – not for the first time – the concern that when it comes to implementation, Section 66A is unworkable to the point of being unconstitutional.

Like all legal provisions, Section 66A must comply with the fundamental rights chapter of the Indian Constitution. Article 19(1)(a) guarantees the freedom of speech and expression, and Article 19(2) permits reasonable restrictions in the interests of – inter alia– “public order, decency or morality”. Presumably, the only way in which Section 66A can be justified is by showing that it falls within the category of “public order” or of “morality”. The precedent of the Supreme Court, however, has interpreted Article 19(2) in far narrower terms than the ones that Section 66A uses. The Court has held that “public order” may only be invoked if there is a direct and immediate relation between the offending speech and a public order disturbance – such as, for instance, a speaker making an incendiary speech to an excited mob, advocating imminent violence (the Court has colloquially stated the requirement to be a “spark in a powder keg”). Similarly, while the Court has never precisely defined what “morality” – for the purposes of Article 19(2) – means, the term has been invoked where (arguably) pornographic materials are concerned – and never simply because speech has “offended” or “menaced” someone. Indeed, the rhetoric of the Court has consistently rejected the proposition that the government can prohibit individuals from offending one another.

This raises two constitutional problems with Section 66A: the problems of overbreadth and vagueness. Both doctrines have been developed to their fullest in American free speech law, but the underlying principles are universal.

A statute is overbroad when it potentially includes within its prohibitions both speech that it is entitled to prohibit, and speech that it is not. In Gooding v. Wilson, a Georgia statute criminalized the use of “opprobrious words or abusive language”. In defending the statute, the State of Georgia argued that its Courts had read it narrowly, limiting its application to “fighting words” – i.e., words that by their very nature tended to incite an imminent breach of the peace, something that was indisputably within the power of the State to prohibit. The Supreme Court rejected the argument and invalidated the statute. It found that the words “opprobrious” and “abusive” had greater reach than “fighting words”. Thus, since the statute left “wide open the standard of responsibility, so that it [was] easily susceptible to improper application”, the Court struck it down.

A statute is vague when persons of “ordinary intelligence… have no reasonable opportunity to know what is prohibited.” InGrayned v. Rockford, the American Supreme Court noted that a vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” There are, therefore, a number of problems with vague laws: one of the fundamental purposes of law is to allow citizens to plan their affairs with a degree of certainty. Vagueness in legislation prevents that. And equally importantly, vague laws leave a wide scope of implementing power with non-elected bodies, such as the police – leading to the fear of arbitrary application.

While overbreadth and vagueness are problems that affect legislation across the board, they assume a particular urgency when it comes to free speech. This is because, as the American Supreme Court has recognized on a number of occasions, speech regulating statutes must be scrutinized with specific care because of the chilling effect: when speech is penalized, people will – out of fear and caution – exercise self-censorship, and the political discourse will be impoverished. If we accept – as the Indian Courts have – that a primary reason for guaranteeing free expression rights is their indispensability to democracy, then the danger of self-censorship is one that we should be particularly solicitous of. Hence, when speech-regulating statutes do proscribe expression, they must be clear and narrowly drawn, in order to avoid the chilling effect. As the American Supreme Court euphemistically framed it, “free speech needs breathing space to survive.” Overbroad and vague speech-restricting statutes are particularly pernicious in denying it that breathing space.

There seems to be little doubt that Section 66A is both overbroad and vague. However ill-judged a holocaust comparison or a morphed corpse-image may be, neither of them are like sparks in a powder keg, which will lead to an immediate breach in public order – or “immoral” in the way of explicit pornography. We can therefore see, clearly, that the implementation of the law leaves almost unbounded scope to officials such as the police, provides room for unconstitutional interpretations, and is so vaguely framed that it is almost impossible to know, in advance, what actions fall within the rule, and which ones are not covered by it. If there is such a thing as over-breadth and vagueness par excellence, then Section 66A is surely it!

At various times in its history, the Supreme Court has acknowledged the problems of overbreadth, vagueness and the chilling effect, but never directly incorporated them into Indian law. As we have seen, each of these elements is connected to the other: over-broad and vague speech-regulating statutes are problematic because of the chilling effect. Since Section 66A is presently being challenged before the Supreme Court, there is a great opportunity for the Court both to get rid of this unconstitutional law, as well as strengthen the foundations of our free speech jurisprudence.

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Free Speech Watch: 66A Misuse Continues

Reports today indicate that an FIR has been filed against a woman – Sheeba Aslam Fehmi – for remarks strongly critical of the prime-ministerial candidate, Mr Narendra Modi. The content of the remarks is available at the link posted above. We do not need to go into much detail here: our previous discussion about free speech on this blog – especially the public order restriction – indicates very clearly that the Supreme Court – in cases such as Ram Manohar Lohia, K.A. Abbas and S. Rangarajan, to name just three – has insisted upon a rigorous standard before a public order defense to restricting free speech can be sustained. Recall that in Lohia, a man expressly telling villagers to break the law by not paying taxes was found to be exercising his right of free speech; and in the film censorship cases, the Court insisted that the relevant public order test was akin to setting off a “spark in a powder keg” – which basically refers to situations such as inciting an excited mob to commit direct and immediate violence. Suffice it to say that S. 66A, IT Act must be interpreted within the bounds of 19(2), as must provisions of the Penal Code relating to disturbing communal harmony – and in no way do remarks critical – strongly critical, even virulently critical – of politicians, even if deemed “anti-national” – whatever that might mean! – can be stifled. This is a blatant violation of 19(1)(a), and will hopefully be dealt with accordingly. 

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Filed under Free Speech, IT Act, Public Order