Kerala' black law breaches SC verdict

We the people have successfully defended our freedom of speech and expression. Kerala Governor signed the withdrawal of controversial ordinance. But the question is: Can a State bring a law in breach of the Supreme Court Judgment?

The ordinance was facilitating reincarnation of Section 66A of Information Technology Act that was declared void ab initio as unconstitutional. Making law against the profound judgment of Supreme Court should be the real contempt of apex court.

The cancelled ordinance says, if you share an opinion on Facebook, like or love it, or forward in WhatsApp, you face a threat of ending up in prison for three years minimum and paying Rs 10,000 as penalty. If the government or those in power feels that that there is a threat, insult, defamation, abuse, humiliation of a person or class of persons in any comment on social media platforms.

This draconian penal provision - Section 66A of Information Technology Act 2000 - was brought by Indian Union in 2007. This provision criminalised speech over internet, computers, or communication devices if such a communication was (a) "grossly offensive or menacing"; (b) where the author knows the information "to be false and meant for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will" or "meant to deceive or mislead the recipient about the origin of such messages, etc, shall be punishable with imprisonment up to three years and with fine." There is a similar anti-free speech provision 118D which also was struck down by SC along with S 66A.

Catch-all expressions used again

Section 118-A was inserted in the Kerala Police Act, by an ordinance almost a similar penal provision with ambiguous 'catch-all' expressions of social media expression crime. This means that a person can face three years in jail and a fine of Rs 10,000 for any social media post that is considered "offensive" or "defamatory". Those who write, share the post, like or forward are threatened with this new penal law, which even Lord Macaulay did not dream of imposing on Indians during British slavery times.

Expression 'grossly offensive or menacing', 'annoyance, inconvenience, danger, obstruction, insult' in 66A IT Act is found in Sec 118-A as 'threatening, abusing", 'humiliating'. 'Insult' in 66A became 'humiliating' in 118-A. And in both Sections the expression 'knows to be false' is common. Kerala's Section 118-A is more draconian as it also extends to 'injury to mind, property or reputation. What does this mean?

How 66A was misused?

The history of misuse of Section 66A of IT Act from 2007 to 2015, till it was struck down, and extended up to 2019 in spite of striking down, is documented. Some examples are here. 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.

This was brought to the notice of the SC by a law student Shreya Singhal in 2012. Netizens and social media writers were harassed by various Governments. In the wake of numerous complaints of harassment and arrests, the apex court had on May 16, 2013 issued an advisory that a person, accused of posting objectionable comments on social networking sites, cannot be arrested without police getting permission from senior officers like IG or DCP.

A boy was arrested for allegedly posting on Facebook calling it 'objectionable comments' against senior Samajwadi Party leader Azam Khan.

Struck down by SC

The Supreme Court has struck down Section 66A Shreya Singhal's PIL in 2015 (2015) 5 SCC 1.) saying that it was contrary to both Article 19 that guarantied Freedom of Speech and Expression and Article 21 that ensured Right to Life and Personal Liberty.

Describing liberty of thought and expression as "cardinal", a bench of justice J Chelameswar and justice RF Nariman said, "The public's right to know is directly affected by section 66A of the Information Technology Act." Bench of SC said, "When judicially trained minds can reach on different conclusions" while going through the same content, then how is it possible for law enforcement agency and others to decide as to what is offensive and what is grossly offensive, the bench said, adding, "What may be offensive to a person may not be offensive to the other."

In Para 82 of the Judgement, SC held: ". . . Expressions such as "grossly offensive" or "menacing" are so vague 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."

"Further, the judgment and final order in the Shreya Singhal case had rendered all investigations, prosecutions, and convictions based on Section 66-A IT Act illegal, and it forestalled any use of Section 66-A IT Act after the decision was rendered. Section 66A which was added in 2007, made posting of "offensive" comments online a crime punishable by three years of jail.

Legal Zombie

Authors of study report by Internet Freedom Foundation coined a new expression "Legal Zombie" which means a mysterious post-death existence for a provision that was struck down. Their paper made a shocking revelation that about 65 to 70 cases cumulatively in different legal databases existed which shows abuse of the provision that is supposed to have been void ab initio i.e., from the date of its insertion in 2007 by amendment to IT Act.

Obviously, these are cases which reached courts, which means it was a tip of an iceberg and there could be several fresh cases registered in police stations, investigated and thereafter, considered by lower Courts. This means a serious failure of the executive, legislature, and judiciary to respond to the judicial development.

Each of the violator should have been punished for contempt of court, not for non-enforcement of Supreme Court order, but for abusing a draconian penal provision which was struck down as unconstitutional. The public servants of three estates have committed an unconstitutional 'criminality' by harassing people who exercised constitutional right of free speech, for a crime which was not a crime.

The Supreme Court was shocked to hear that authorities still continue to book people under the now extinct and draconian provision when this was brought to its notice of Supreme Court by People's Union for Civil Liberties in a PIL in 2019. The PUCL sought a direction to ensure implementation of Supreme Court's decisions, as well as to raise legal awareness, and the copies of SC judgment be provided for by the Supreme Court to all High Courts, for further dissemination to the District Courts under their jurisdiction.

Finally, the application requested that the High Courts pass necessary orders in all pending cases of 66A to ensure disposal. The PUCL request was allowed on 15.2.2019.

(The writer is Professor of Law, Bennet University and former Central Information Commissioner)