Junk Section 66A or jails will be full of Twitter trolls
A bench of the Supreme Court comprising Justices Jasti Chelameswar & Sharad A Bobde, has begun final hearings into a slew of matters which challenge the constitutional validity of the provocative Section 66A of the Information Technology Act.
The section which has been on the statute book since 2009 provides for upto 3 years imprisonment as “punishment for sending offensive messages through communication service, etc.” It penalises “any person who sends, by means of a computer resource or a communication device:
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,”
To my mind the section is delightfully vague, imprecise, subjective and can render innocent behaviour criminal, without any criminal intent on the perpetrator’s part. Information that is “grossly offensive” to Peter might well be outrageously funny to Paul. A communication that assumes a menacing character when read by Paul might be a mere invitation if addressed to Peter. A love epistle by email, whatsapp or facebook might be welcome to a lass but is capable of causing annoyance if viewed by her father. Imprisonment for persistently sending information known to be false, for the purpose of causing “inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will”, may render even a new Tihar Jail insufficient to accommodate troll senas and Twitter warriors.
The petitioners, lead by the redoubtable Soli Sorabjee as senior counsel, have assailed the section as violative of freedom of speech and expression. Relying on earlier judgments of the Supreme Court rendered in the newspaper age, they have contended that the “Freedom of the Press is the Ark of the Covenant of Democracy because public criticism is essential to the working of its institutions. Never has criticism been more necessary than today, when the weapons of propaganda are so strong and so subtle.” [see Bennett Coleman & Co. vs. Union of India, 1973 (2) SCR 757]
They submit that restrictions which can be imposed on freedom of speech and expression can be only under the heads specified in Article 19(2) of the Constitution of India and none other. The heads mentioned the article render freedom of speech subject only to laws concerning interests of the 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. The grounds of annoyance, inconvenience, danger, obstruction, insult, injury specified in Section 66A are outside the purview of Article 19(2). Hence the said Section is claimed to be unconstitutional.
They contend that enforcement of the said Section is an insidious form of censorship which is not authorised by the Constitution. They cite numerous instances about the arbitrary and frequent invocation of the said Section which highlight the legal infirmity arising from uncertainty and vagueness which is inherent in the said Section. It is urged that the section has a chilling effect on freedom of speech and expression
The NDA government is expected to defend the section next week, through its additional solicitors general, Tushar Mehta and PS Narasimha. The government’s defence is likely to be that the section has deliberately been defined in wide terms, because the evolution of computer technology and the internet, now magnify the extreme effects of free speech. A spark on social media or an incendiary whatsapp forward may result in actual loss of life elsewhere.
It may be contended that the possibility of abuse by itself, does not render any legislation unconstitutional. The broad powers under the section would be necessary to the police, to control emergent situations where violence is incited over electronic networks. Suitable guidelines could be considered, to render the section harmless to most instances of bad behaviour. Any good lawyer appearing for the government, is quite likely to assist the court in formulating guidelines for invocation of the section. Some checks and balances might have to be inserted to ensure that action is taken not at the instance of a touchy complaiant or an over zealous constable. Such guidelines coming from the court, would take away the sting of the possibility of abuse, but retain the section on the statute book as a measure of last resort in emergency situations.
The Supreme Court will be called upon to balance its commitment to the fundamental rights of the citizen to free speech, against the state’s power to curtail freedoms deal with specific situations of violence or threats to law and order. Orwell wrote that "Freedom is the freedom to say that two plus two makes four. If that is granted, all else follows" The question for the final court in a democratic constitution is, how far can you trust Big Brother to do the right thing, all the time?