The latest newsmaker about town, the one who has helped the Supreme Court strike down the controversial Section 66A of the Information Technology (IT) Act is a young Shreya Singhal. Born into a family seeped in the legal business, she herself was aspiring to become a law student and had taken a gap year in 2012. Her mother is a Supreme Court lawyer and her grandmother was a judge. The story of her involvement in fighting the draconian law dates back to the 2012 arrest of Kanpur-based cartoonist Aseem Trivedi which alerted her to the ramifications of the use of this law. The arrest of the Palghar girls for their Facebook remarks on Bal Thackeray’s funeral and that of a Puducherry businessman for criticising Karti Chidambaram urged her to wage a court battle against the misuse of the law.
“It really got me enraged,” she said at a media interaction. “The law was being wantonly misused and it seemed blissfully unaware of the intricacies of what constitutes the Internet.”
According to her, “Courts are the one place where every citizen can go. If you say something in a newspaper or on TV, that’s fine, but if you say it on Facebook, you get arrested. I think there are so many people in India who are tech-savvy and very vocal about their views. It’s a natural revolution,” she said about the Section 66A.
Today, Shreya Singhal is a much relieved person. Hailing the Supreme Court’s decision to strike down the Section 66A of the IT Act, she felt that no one would fear expressing their opinions online anymore.
According to her, “Under Section 66A, you cannot be jailed anymore because the Section stands invalid. I am not advocating the defamation of someone but there are other provisions in the IPC (Indian Penal Code) that ensure hate speeches are dealt with. However, there is no blanket provision that will curtail your freedom of speech. No one should fear putting something up online anymore.”
“There were two tests that were put to the Section 66A — specific and present danger and the probability of inciting hatred. The Section 66A has failed those tests because the posts that people were jailed for did not incite public hatred or disrupted law and order,” she added.
There were scenes of jubilation at her place after the verdict. Her mother Manali was delighted with her daughter’s efforts, too. “We’re very happy. The consequences are going to be very positive. Now people are not going to be scared to exchange and freely put their views on the Internet,” she said.
Even as reports began trickling in about how Rinu Srinivasan, who had been arrested a little more than two years ago for using Facebook to question the shutdown of Mumbai for Shiv Sena patriarch Bal Thackeray’s funeral, felt hugely vindicated, the view across the spectrum dovetailed this latent optimism as the apex court had reinforced the basic right of free expression by striking down the provision in its entirety, leaving little scope for any dangerous ambiguity.
Fundamental civil liberties now have a distinct stamp of jurisprudence, say Ujwala Uppaluri and Sarvjeet Singh of Delhi University. The court simply found the Section 66A egregious and unsalvageable.
Amid fears of a creeping nanny state, online censorship was acquiring increasingly hideous overtones. “Instead of promoting freedom of expression, the said Section effectively throttled it,” says an academic Meenakshi Mukerjee.
A cartoonist Aseem Trivedi, whose political interpretation of the prevailing reality more than two years ago landed him in trouble, simply said: “It is a big day and a huge victory for idealism and freedom.”
One leading voice in favour of doing away with the patently obnoxious Section of the IT Act has been lawyer Aparna Vishwanathan, who has written extensively on the issue. She has put on record how on 6 February 2013, Sanjay Chaudhary was arrested under the Section 66A of the IT Act for posting ‘objectionable comments and caricatures’ of Prime Minister Manmohan Singh, Union Minister Kapil Sibal and Samajwadi Party President Mulayam Singh Yadav on his Facebook wall.
This arrest followed numerous others over previous months for political speech through social media: Manoj Oswal for having caused ‘inconvenience’ to relatives of Nationalist Congress Party chief Sharad Pawar for allegations made on his website; Jadavpur University professor Ambikesh Mahapatra for a political cartoon about West Bengal chief minister Mamata Banerjee; businessman Ravi Srinivasan in Puducherry for an allegedly defamatory tweet against the son of the then Union Finance Minister P Chidambaram; two Air India employees, who were jailed for 12 days, for alleged defamatory remarks on Facebook and Orkut against a trade union leader and a politician; and Aseem Trivedi for drawing cartoons lampooning Parliament and the Constitution to depict their ineffectiveness.
However, the incident that rocked the nation was the arrest last November of two young women, Shaheen Dadha and her friend Renu Srinivasan, for a comment posted on Facebook that questioned the shutdown of Mumbai following the demise of Shiv Sena supremo Bal Thackeray. The girls were arrested under the Section 66A for allegedly sending a ‘grossly offensive’ and ‘menacing’ message through a communication device.
In reply to Shreya Singhal’s petition, the erstwhile upa Government defended the constitutionality of the Section 66A, relying first on the “advisory on implementation of Section 66A of the Information Technology Act 2000” issued by the Department of Electronics and Information Technology on 9 January 2013 to the chief secretaries and the directors-general of police of all states/union territories. The advisory asked state governments not to allow the police to make arrests under the Section 66A without prior approval from an officer not below the rank of inspector-general of police in the metropolitan cities or deputy commissioner of police or superintendent of police at the district level.
However, this advisory is clearly not sufficient as political interference in law enforcement is well known and the arrests, as shown above, have not abated.
The Centre has under successive dispensations sought to justify the legality of the Section 66A, introduced in the 2009 amendments to the IT Act, on the ground that it has been taken from the Section 127 of the UK Communications Act, 2003. In fact, the Section 66A is very different from the Section 127 which, moreover, has been ‘read down’ by the House of Lords on the grounds that Parliament could not have intended to criminalise statements that one person may reasonably find to be polite and acceptable and another may decide to be ‘grossly offensive’.
The question, however, remains: Can a democratic society criminalise the causing of annoyance, inconvenience, insult or ill will? Causing insult or ill will or enmity could be a criminal offence if it amounts to defamation. However, insulting someone or causing inconvenience per se cannot surely be a crime in itself either in the real or virtual worlds.
As Vishwanathan points out, the Indian IT Act has unbelievably lumped causing annoyance and inconvenience in the same Section as criminal intimidation and made it subject to the same punishment.
According to the lawyer, the Section 66A certainly does not engage in the delicate balancing required to pursue the legitimate objective of preventing criminal intimidation and danger through social media without going no further than required in a democratic society to achieve that end.
The drafters of the Section 66A(b) have equated known criminal offences in the real world with acts such as causing annoyance and inconvenience that can never constitute an offence in the real world and should not be offences in the virtual world. Therefore, the legislative restrictions on freedom of speech in the Section 66A(b) cannot be considered as being necessary to achieve a legitimate objective. The Section 66A should not be considered a ‘reasonable restriction’ within the meaning of Article 19 of the Constitution and must be struck down as an unconstitutional restriction on freedom of speech.
Her views stand vindicated. If political speech, that is, criticism of politicians and exposure of corruption continues to be punished by arrest instead of being protected, India’s precious democracy and free society will be no more.
When the founding fathers of the Constitution set great store by freedom of expression, they could scarcely have imagined how tough it will be to ensure such basics so many years later.
The Act was a standing symbol of a criminal justice system and law enforcement mechanism going terribly haywire. It is to be seen how, now that the monstrosity is a thing of the past, the very crucial right to privacy and against defamation are treated.