Upholding voices of dissent

The offence created by Section 66A (of Information Technology Act 2000 as incorporated by an amendment in 2008) has no proximate relation with any of the eight subject matters contained in Article 19(2) of the Constitution of India. The Union Government vehemently claimed that this Section can be supported under the heads of public order, defamation, incitement to an offence and decency or morality.

The Supreme Court picked up each of these so-called ‘defences’ and shot them down with fine analysis, comparison with several judgements of English and US courts to finally uphold the freedom of expression both online and offline

A great, comprehensive and analytical protection to the voices of common men and a wonderful shield to secure their personal liberty was built by two judges of the Supreme Court, Justice Jasti Chalameshwar, and Justice R F Nariman. Entire nation including journalists and netizens should thank them for standing by their liberty of voicing dissent.

Without definition: Can anyone in any democracy imagine an expression of crime without defaming or inciting a crime, affecting public order, decency or morality and devoid of mens rea? Section 66A was opposed not only to constitutionally guaranteed expression of freedom but also to the cardinal principles of criminal justice anywhere in the rule-of-law-governed states.

Beyond 19 (2): The offence created by Section 66A (of Information Technology Act 2000 as incorporated by amendment in 2008) has no proximate relation with any of the eight subject matters contained in Article 19(2) of the Constitution of India. The Union government vehemently claimed that this Section can be supported under the heads of public order, defamation, incitement to an offence and decency or morality. The Supreme Court picked up each of these so-called ‘defences’ and shot them down with fine analysis, comparison with several judgements of English and US courts to finally uphold the freedom of expression both online and offline.

The Supreme Court took the support of its own decision of 1962 in Sakal papers case ([1962] 3 S.C.R. 842), which said: Freedom of speech can be restricted only in the interests of the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

It cannot, like the freedom to carry on business, be curtailed in the interest of the general public. If a law directly affecting it is challenged, it is no answer that the restrictions enacted by it are justifiable under clauses (3) to (6). For, the scheme of Article 19 is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjected and the objects for securing which this could be done.

Clear and present danger test

Exciting violence: In State of Bihar v. Shailabala Devi, [1952] S.C.R. 654, the SC said that an article, in order to be banned must have a tendency to excite persons to acts of violence (at page 662-663). The test laid down in that decision was that the article should be considered as a whole in a fair free liberal spirit and then it must be decided what effect it would have on the mind of a reasonable reader (pages 664-665).

Defamation: Section 66A does not concern itself with injury to reputation of individual. Something may be grossly offensive and may annoy or be inconvenient to somebody without at all affecting his reputation. It is clear therefore that the Section is not aimed at defamatory statements at all.

Incitement to an offence: Equally, Section 66A has no proximate connection with incitement to commit an offence. Firstly, the information disseminated over the internet need not be information which “incites” anybody at all. Written words may be sent that may be purely in the realm of “discussion” or “advocacy” of a “particular point of view”. Further, the mere causing of annoyance, inconvenience, danger etc., or being grossly offensive or having a menacing character are not offences under the Penal Code at all. They may be ingredients of certain offences under the Penal Code but are not offences in themselves. For these reasons, Section 66A has nothing to do with “incitement to an offence”.

Unrelated eight subjects: As Section 66A severely curtails information that may be sent on the internet based on whether it is grossly offensive, annoying, inconvenient, etc. and being unrelated to any of the eight subject matters under Article 19(2) must, therefore, fall foul of Article 19 (1) (a), and not being saved under Article 19 (2), is declared as unconstitutional, the Supreme Court said.

Obscenity: In Directorate General of Doordarshan vs. Anand Patwardhan, 2006 (8) SCC 433, the Supreme Court noticed the law in the United States and said that a material may be regarded as obscene if the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest and that taken as a whole it otherwise lacks serious literary artistic, political, educational or scientific value (see Para 31).

In Aveek Sarkar v. State of West Bengal, 2014 (4) SCC 257, the Supreme Court referred to English, U.S. and Canadian judgments and moved away from the Hicklin test and applied the contemporary community standards test. Section 66A cannot possibly be said to create an offence which falls within the expression ‘decency’ or ‘morality’ in that what may be grossly offensive or annoying under the Section need not be obscene at all – in fact the word ‘obscene’ is conspicuous by its absence in Section 66A.

Inexactitude: They said: It is thus clear that not only are the expressions used in Section 66A expressions of inexactitude but they are also over broad and would fall foul of the repeated injunctions of this Court that restrictions on the freedom of speech must be couched in the narrowest possible terms.

No place to mens rea: Deciding several writ petitions challenging 66A, the Supreme Court said: “It is quite clear that the expressions used in 66A are completely open-ended and undefined. It will be clear that in all computer-related offences that are spoken of by Section 66, mens rea is an ingredient and the expression “dishonestly” and “fraudulently” are defined with some degree of specificity, unlike the expressions used in Section 66A.

it is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right”.