A blow for free speech

IN Law and Policy | 25/03/2015
In an impressive judgement, the Supreme Court has protected free speech by striking down Section 66A of the IT Act.
PRASHANT R THIKKAVARAPU explains the reasoning behind it. (Pix: left: Nariman; right: Chelameswar).
In a rare victory for free speech in India, a bench of the Supreme Court of India consisting of Justice Rohinton Nariman and Justice Chelameswar, struck down Section 66A of the Information Technology Act, 2000 (which criminalized annoying, menacing and offensive speech), along with the Section 118(d) of the Kerala Police Act (which criminalized annoying speech) for violating the fundamental right to free speech enshrined in Article 19(1)(a) of the Constitution. Section 79 of the IT Act which immunizes intermediaries from liability was held valid by the Court subject to certain conditions. Only Section 69A of the IT Act, which allows the government to block websites, on certain limited grounds, was held entirely constitutional by the Court. 
 
The petitioners, lawyers and judges
 
This particular judgment of the Supreme Court was a result of 10 different petitions filed by a diversegroup of citizens. Apart from the usual heavy weights in this field, like the Peoples Union of Civil Liberties (PUCL) and Common Cause, the list of other petitioners includes a sitting Member of Parliament (MP), an author, a law student, the Internet and Mobile Association of India (IMAI) and the CEO of Mouthshut.com, which is an internet portal that hosts consumer reviews on different goods and services. Most of the petitioners were represented by relatively young lawyers. 
 
While the petitioners and their lawyers are undoubtedly the stars of the day, the man who shines the brightest, is Justice Rohinton Nariman, the Supreme Court judge who  authored this 122 page judgment on behalf of the Bench. Elevated to the Supreme Court directly from the Bar, Justice Nariman is the son of Fali Nariman, one of India’s greatest living lawyers. It is most likely that any other judge in his place would have come to the same conclusions as him but what sets Justice Nariman apart is the conceptual clarity and technical precisionwith which he has dealt with the free speech jurisprudence in both India and the US. Every conclusion of his is meticulously supported by judicial precedent. It is a judgment which is likely to find itself cited along with the other great civil liberties judgments of the Supreme Court.
 
The ruling on Section 66A 
 
Section 66A criminalized the use of a computer resource to send “any information that is grossly offensive or has a menacing character; or any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insultinjury, criminalintimidation, enmity, hatred or ill will,persistently by making use of such computer resource or a communication device”. 
 
A breach of S. 66A could be punished with imprisonment of up to 3 years and a fine. Since its enactment, the provision has been used and abused to arrest ordinary citizens for posting or even ‘sharing’ and ‘liking’, seemingly innocuous personal views on social media. The case perhaps which got the most publicity was of the two girls in Mumbai who were arrested for questioning the shutdown of Mumbai after Bal Thackery’s death. 
 
In his judgment, Justice Nariman begins his discussion by explaining the fundamental concepts in the theory of free speech. According to him, free speech begins with discussion and then continues with advocacy before leading to incitement. He explains that ‘It isonly when such discussion or advocacy reaches the level ofincitement that Article 19(2) kicks in.’Under Article 19(2) a Court may impose reasonable restrictions in the interest of ‘sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence’. 
 
Before determining whether S.66A falls within these grounds enumerated in Article 19(2), the Court had to determine the level of scrutiny with which it is required to assess S. 66A. The government tried arguing that ‘a relaxed standard of reasonableness of restriction shouldapply regard being had to the fact that the medium of speechbeing the internet differs from other mediums on severalgrounds.’ If the Court had accepted this logic, it would have basically have to ignore all existing judicial precedent on free speech with regard to conventional media and re-invent the free speech wheel  for the internet age. Justice Nariman rejected this argument on the grounds that past judgments of the court had already ruled against having a different set of rules for the print media and electronic media on the grounds that the right to free speech includes the right to disseminate the said speech to the widest possible audience. Just because the internet reached the widest possible audience, did not mean that it was necessary to have a different set of rules for the internet.In the Court’s words “we do not find anything in thefeatures outlined by the learned Additional Solicitor General torelax the Court’s scrutiny of the curbing of the content of freespeech over the internet.”
 
From thereon, the government case was on a slippery slope. 
 
The onus was on the government to establish the fact that S. 66A was in fact covered by the permissible restrictions in Article 19(2) of the Constitution. The discussion on Article 19(2) begins with the contours of ‘public order’. Unlike the Delhi High Court in the AAP poster case which justified restrictions on pasting political posters on private property because of ‘short fuses’ and ‘ugliness’, Justice Nariman explains how the Supreme Court has dealt with the issue of ‘public order’ in the past. The ‘test’ has always been whether a particular act or a speech will disturb the life of a community. He points out as to how S. 66A makes no difference between mass dissemination and dissemination to just one person and more importantly how the provision does not require any disturbance to public order as a trigger to be invoked. The second limb of his analysis required assessing whether S. 66A was required to prevent a ‘tendency’ to create public disorder. Discussing precedents, Justice Nariman points out how past precedent has upheld restrictions only where the act or speech sought to be curbed has  an immediate tendency to cause public disorder. For example a hate speech on religious grounds which incites a community to attack the other has the tendency to affect public order and can thus be restricted. 
 
The above analysis with respect to ‘public order’ is then repeated by Justice Nariman with respect to ‘defamation’, ‘decency or morality’, ‘incitement to offence’ – which are basically the only restrictions in Article 19(2) relevant to the wording in S.66A. In each case Justice Nariman points out with almost clinical precision why each ground for reasonable restriction was inapplicable to S. 66A. Without support from Article 19(2) it is was inevitable that S. 66A would be held unconstitutional. Before coming to that exact conclusion, Justice Nariman indulges the reader with one last infirmity in S.66A: vagueness in the wording of the provision as a result of which the provision canhave a chilling effect on free speech since citizens can never be clear on the boundaries of free speech. Pointing to the vague words used in the provision such as ‘annoying’, ‘menacing’ and ‘grossly inoffensive’ Nariman concludes that ‘it is quite clear that the expressions used in 66A are completely open-ended and undefined’and that ‘it is clear that S. 66A is unconstitutionally vague’.
 
S. 118(d) of the Kerala Police Act was also struck down for similar reasons.
 
The ruling on Section 79 
 
Section 79 of the IT Act, a lesser known but equallyimportant provision of the law since it protects online intermediaries from liability. In simple English, the provision seeks to protect Facebook from liability for content being posted on its website by its users. As enacted, S. 79 read along with the concurrent rule 3 of the Information Technology (Intermediary Guidelines) Rules, 2011, offer immunity to the intermediary only if they swiftly removed the offending content from their website, after the same was brought to its notice by either a user or the government.
 
The information that is required to be removed is outlined in Rule 3 of the Rules and includes vague phrases such as ‘grossly harmful’, ‘harassing’, blasphemous’ or ‘otherwise unlawful in any manner’. Therefore if you as a user complain to a Facebook or Google blogger about some content which falls within Rule 3, the intermediary has to take down the content within 36 hours in order to maintain its immunity. Of course, the intermediary can refuse to take down the content on grounds that it is not violative of the law but the question is just how many intermediaries are going to stick their neck out and incur liability. There is thus a tendency on the part of intermediaries to over-censor. 
 
The challenge to S.79 was most likely fuelled by purely commercial interests since Google, Facebook, Mouthshut.com have all faced a plethora of takedown notices and criminal prosecutions from companies which are not happy about critical reviews of their products. But it is exactly those commercial interests which fuel the profits of companies like Google and Facebook, that are crucial in keeping the internet a free and innovative market place for free speech.
 
Despite the language in Rule 3 being similar to S. 66A, the Court refrained from striking it down on the grounds that S. 79 and the corresponding Rule 3 only provided for an exemption from liability and did not necessarily criminalize any kind of speech. Thus if there is no other law in the country which punishes blasphemy, there is no question of a successful prosecution. To that extent Rule 3 is senseless. S. 66A on the other hand criminalized new categories of speech in a manner not permitted under Article 19(2).
 
Justice Nariman however did ‘read down’ Section 79(3) to state that the intermediary is required to take down content only after receiving an order from either a court or the government. A provision is ‘read down’ when it is broad and possibly offending the Constitution. By ‘reading down’ the provision, its language is preserved but its interpretation is narrowed down to ensure its compliance with the Constitution. As a result of Section 79 being ‘read down’, intermediaries do not have to exercise their own judgment in order to take down content. Thus a person aggrieved by content on Facebook of Google blogger will have to approach the government or the courts for relief – they can no longer approach the intermediary directly to take down content. This ruling is thus a big win for intermediaries because the provision now saves them the headache of investing in elaborate takedown mechanisms. The downside of course is that if you are an innocent citizen who has been slandered online, it has just become a lot more difficult for you to get the slanderous content removed. 
 
The Ruling on Section 69A 
 
S. 69A is a provision which gives the government the power to block websites on certain limited grounds which are squarely covered under the reasonable restrictions mentioned in Article 19(2). The problem though with this provision is that the Government has not been very transparent in enforcing it. Several times websites blocked under this provision merely display a single sentence stating that the website has been blocked because of orders from the DoT but fail to give any reasons for the DoT’s decision. Very often even proprietors of websites don’t know why they have been blocked. The Court refrained from striking down this provision because the grounds on which content could be blocked were covered under Article 19(2)and because there were enough procedural safeguards to prevent abuse of the law. Since decisions of the government under S. 69A can be challenged before the High Courts, it is up to the internet industry to challenge these orders before High Court in order to ensure more clarity on the point. 
 
The future of free speech in the country 
 
There is no doubt that the Supreme Court’s judgment on S. 66A is a landmark in the struggle for protecting the fundamental right to free speech and expression in this country. We must however not forget the fact that this provision is usually used along with other laws such as S.295A of the Indian Penal Code (IPC), which is a provision that penalizes deliberate and malicious acts intended to outrage religious feelings or S.153A of the IPC which criminalizes sedition. The Mumbai girls were arrested under S. 66A and S.295A for questioning the shutdown of Mumbai after Thackery’s death. Similarly Aseem Trivedi the cartoonist who drew the Parliament as a commode was arrested under S. 66A read along with S.153A. In neither case do the elements of the purported speech meet the thresholds prescribed under the law for a successful prosecution under either S. 153A or S. 295A but that is an issue for trial – the arrests and the abuse of process happen much before the trial even beings. Thus although Section 66A has now disappeared, the battle will not be won until we have magistrates and judges who are strict in dismissing these cases at the very beginning. 
 
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