Jun 5, 2020 07:28 UTC
Jun 15, 2020 at 12:19 UTC
Determining the constitutional validity of Section 66A of the Information Technology Act, 2000
CASE COMMENT ON SHREYA SINGHAL V. UNION OF INDIA, (2015 (5) SCC 1)
In this case, the question arose before the Hon’ble Supreme Court to determine the constitutional validity of Section 66A of the Information Technology Act, 2000. The main contention alleged by the petitioners was that Section 66A infringes the fundamental right to free speech and expression and is not saved by any of the eight subjects covered under Article 19(2). Counsels for petitioner in the case submitted that since the terms mentioned in the Act such as annoyance, inconvenience, danger, obstruction, insult etc are not defined, they carry a wide interpretation which might lead to robe the innocents, who share or publish any information or their views over the internet. It was further submitted that because of the ambiguity in the said section, the authorities under the Information Technology Act had room to use it arbitrarily and could easily book innocent individuals under this provision. The counsels for petitioners further submitted that their public right to know is also affected by Section 66A in the way that information of all kind is included in the section. Such information may have scientific, literary or artistic value, it may cause annoyance or inconvenience to some whereas it might be useful for others.
Brief Facts of the case
The story follows that police arrested two women for posting allegedly offensive and objectionable comments on Facebook about the propriety of shutting down the city of Mumbai after the death of a political leader. The police made the arrests under Section 66A of the Information Technology Act of 2000 (ITA), which punishes any person who sends through a computer resource or communication device any information that is grossly offensive, or with the knowledge of its falsity, the information is transmitted for the purpose of causing annoyance, inconvenience, danger, insult, injury, hatred, or ill will.
Although the police later released the women and dismissed their prosecution, the incident invoked substantial media attention and criticism. The women then filed a petition, challenging the constitutional validity of Section 66A on the ground that it violates the right to freedom of expression.
The Supreme Court of India initially issued an interim measure in Singhal v. Union of India prohibiting any arrest pursuant to Section 66A unless such arrest is approved by senior police officers. The case was subsequently brought in and afforded the Court a challenge to address the constitutional validity of the provision.
Initially this Section 66A was not in the Act as originally enacted. It came into force by virtue of Amendment Act of 2009 with effect from 27.10.2009. The Statement and Objects and Reasons appended to the Bill which introduced the Amendment Act stated in paragraph 3 that “A rapid increase in the use of computer and internet has given rise to new forms of crimes like publishing sexually explicit materials in electronic form, video voyeurism and breach of confidentiality and leakage of data by intermediary, e-commerce frauds like personation commonly known as Phishing, identity theft and offensive messages through communication services. So, penal provisions as required to be included in the Information Technology Act, the Indian Penal Code, the Evidence Act and the code of Criminal Procedure to prevent such crimes.” It is clear from the above, the intent of the legislature is clear that they wanted to ensure that offensive messages through the process of internet are not sent.
Decision of the Hon’ble Court
The Hon’ble court in its exhaustive pronouncement firstly tried to dispel that Section 66A of the Act is not protected under any of the exceptions provided under Article 19(2). However counsel for State had submitted that Section 66A can be supported under the heads of public order, defamation, incitement to an offence and decency or morality. The Hon’ble Court rejected the contention in the following terms:
- Public order – The Hon’ble Court held as stated in Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia Hon’ble Supreme Court held that public order is synonymous with public safety and tranquillity. Further, the court held that this section does not make any difference between mass dissemination and dissemination to one person. The Section in question also does not require that such a message should have a clear tendency to disrupt public order. Section 66A states that as soon as grossly offensive information is sent through a computer device the offence is complete. It is not required that such information should have a tendency to create public disorder. In these terms, the Hon’ble Court rejected the contention of the state and held that Section 66A cannot be made a part of this exception.
- Defamation – The second point argued by the counsels for the State was that Section 66A falls under the exception of Defamation. The Hon’ble Court held that since an injury to reputation is a basic ingredient, Section 66A does not concern itself with injury to reputation. Something may be grossly offensive and may annoy or be inconvenient to somebody without at all affecting his reputation. Hence it became clear that the said Section of the Act is not aimed at defamatory statements at all.
- Incitement to an offence – Thirdly Hon’ble Court holds that it is not always necessary that information disseminated over internet incites anybody for an offence. Written words sent may be purely under the realm of discussion or advocacy. Further Hon’ble court held that mere causing of annoyance, inconvenience, danger etc or being grossly offensive are not offences under the Indian Penal Code unlike incitement to an offence. They might be ingredients of certain offences in the Penal Code but are not offences per se. For these reasons, Hon’ble Court held that Section 66A has nothing to do with incitement of an offence.
- Decency and Morality – The Hon’ble Court held that Section 66A cannot 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. As a matter of fact, the word ‘obscene’ is conspicuous by its absence in Section 66A.
Vague Language: Enough to Plunder All Speech
The fundamental assailment of the petitioners was that terms used in Section 66A were so vague that neither would an accused be put on notice as to what exactly is the offence which has been committed nor would the authorities administering the Section be clear as to on which side of a clearly drawn line particular communication will fall. They further submitted that neither of the term used in the section such as ‘offensive’, ‘menace’, ‘annoyance’, ‘inconvenience’, ‘danger’, ‘obstruct’ and ‘insult’ has been defined in the Act.
The Hon’ble Court relaying upon a series of judgments of U.S. Supreme Court held that a Section which creates an offence and which is vague must be struck down as being arbitrary and unreasonable.
Taking into account Herndon v. Lowry case the Hon’ble Court held that where a statute is so vague as to make criminal an innocent act, a conviction under it cannot be sustained.
Hon’ble Court further noted that penal law is void for vagueness if it fails to define the criminal offence with sufficient definiteness. Ordinary people should be able to understand what conduct is prohibited and what is permitted. Also, those who administer the law must know what offence has been committed so that arbitrary and discriminatory enforcement of the law does not take place.
The Hon’ble Court referring to Kartar Singh v. State of Punjab held:
“It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasized that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so uncertain and undefined words deployed inevitably lead citizens to steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked.“
Hon’ble Court in its findings held that in comparison provisions of Section 66 are defined up to an extent, computer-related offences that are spoken of by Section 66, men’s rea is an ingredient and the expression “dishonestly” and “fraudulently” are defined with some degree of specificity, unlike the expressions used in Section 66A. Expressions such as “grossly offensive” or “menacing” used in the section 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. Quite obviously, a prospective offender of Section 66A and the authorities who are to enforce Section 66A have absolutely no manageable standard by which to book a person for an offence under Section 66A.
With the aforementioned reasons the Hon’ble Court held Section 66A to be unconstitutional being violative of Article19(1)(a).
Chilling Effect and Overbreadth
In the legal context, a chilling effect is the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction. The right that is most often described as being suppressed by a chilling effect is the US constitutional right to free speech. A chilling effect may be caused by legal actions such as the passing of a law, the decision of a court, or the threat of a lawsuit; any legal action that would cause people to hesitate to exercise a legitimate right (freedom of speech or otherwise) for fear of legal repercussions.
The Hon’ble court took reference of an earlier case decided by the Supreme Court. In Ram Manohar Lohia case, Section 3 of the U.P. Special Powers Act, where the persons who “instigated” expressly or by implication any person or class of persons not to pay or to defer payment of any liability were punishable. Hon’ble Supreme Court specifically held that under the Section a wide net was cast to catch a variety of acts of instigation ranging from friendly advice to systematic propaganda. It was held that in its wide amplitude, the Section takes in the innocent as well as the guilty, bonafide and malafide advice and whether the person is a legal adviser, a friend or a well-wisher of the person instigated, he cannot escape the tentacles of the Section. The Court held that it was not possible to predicate with some kind of precision the different categories of instigation falling within or without the field of constitutional prohibitions. It further held that the Section must be declared unconstitutional as the offence made out would depend upon factors which are uncertain.
In another case of Kameshwar Prasad & Ors. v. The State of Bihar & Anr. Rule 4-A of the Bihar Government Servants Conduct Rules, 1956 was challenged. The rule stated, “No government servant shall participate in any demonstration or resort to any form of strike in connection with any matter pertaining to his conditions of service.”
The Hon’ble Supreme Court held that word demonstration may be defined as “an expression of one’s feelings by outward signs.” A demonstration such as is prohibited by, the rule may be of the most innocent type – peaceful orderly such as the mere wearing of a badge by a Government servant or even by a silent assembly say outside office hours – demonstrations which could in no sense be suggested to involve any breach of tranquillity, or of a type involving incitement to or capable of leading to disorder. If the rule had confined itself to demonstrations of a type which would lead to disorder then the validity of that rule could have been sustained but what the rule does is the imposition of a blanket-ban on all demonstrations of whatever type – innocent as well as otherwise and in consequence its validity cannot be upheld.
The Court further went on to hold that remote disturbance of public order by demonstration would fall outside Article 19(2).
Considering the decisions rendered in the above judgments, the Hon’ble Court in this matter held that the above two cases bind this case and would apply directly on Section 66A. The court held that the Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of over-breadth.
Application of Doctrine of Severability
The last submission made by the counsel for the state is that in the event of Hon’ble Court not being satisfied with the constitutional validity of either an expression or a part of the provision, the Doctrine of Severability as enshrined under Article 13 may be resorted.
The Hon’ble court following the decision in Romesh Thappar v. State of Madras held that the present being a case of an Article 19(1)(a) violation, Romesh Thappar’s judgment would apply on all fours. In an Article 19(1)(g) challenge, there is no question of a law being applied for purposes not sanctioned by the Constitution for the simple reason that the eight subject matters of Article 19(2) are conspicuous by their absence in Article 19(6) which only speaks of reasonable restrictions in the interests of the general public. The court observed that in the present case where, as has been held above, Section 66A does not fall within any of the subject matters contained in Article 19(2) and the possibility of its being applied for purposes outside those subject matters is clear. Therefore the court held that no part of Section 66A is severable and the provision as a whole must be declared unconstitutional.
Before making the analysis it is fundamental to mention Section 66A:
“Punishment for sending offensive messages through communication service, etc :- 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, shall be punishable with imprisonment for a term which may extend to three years and with fine.
Explanation.– For the purpose of this section, terms “electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.“
To ascertain whether provisions of Section 66A are against the freedom of speech and expression provided under Article 19(1)(a) and are not covered under any of the protection under Article 19(2), it is pertinent to reproduce the said Articles.
“Article 19. Protection of certain rights regarding freedom of speech, etc :- (1) All citizens shall have the right- (a) to freedom of speech and expression …“
“Nothing in sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interest 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 first shortcoming noticed in the judgment of Hon’ble Supreme Court is without adverting to the facts of the case, the decision has been rendered. Facts in this case which prompted the petitioners to file petition have not been mentioned. Those facts were fundamental and bedrock to the case. In absence of which, in what context those facts have been reconciled by the court have not been mentioned.
- Secondly, though judgment of hon’ble Supreme Court in earlier cases have been discussed but it is to be noted that in both the judgments where the ground of vagueness in the statutory provision has been mentioned and on account thereof this section has been held unconstitutional, i.e., in the case of Kameshwar Prasad and ors. v. State of Bihar and similarly in Ram Manohar Lohia’s Case the vagueness was defined by the court in the sense that examples were given as to how the innocent could have falsely roped in the provisions of those two acts. In Kameshwar Prasad’s case the facts were entirely different for the reason that any sort of demonstration or resort to any form of strike with the conditions of service was prohibited. Now Hon’ble Supreme Court in this case held that those demonstrations could be silent demonstrations that a person wearing a badge could have silently moved outside the office hours and in such circumstances the peculiar examples, instances were given which were there to show that the vagueness could have roped in the innocents. However in the case at hand no such instance has been quoted, clarified or exemplified where the court could say that under such conditions innocents were falsely charged.
- Thirdly, Section 127 has a similar phraseology used in enactment which was there in section 66A. So hon’ble Supreme Court though has zealously protected the right of freedom of speech and expression but at the same time has in my humble opinion not been able to balance what the repercussions of disseminating obscene, vulgar, offensive messages or information or content put in public domain by someone.
- Fourthly it is worthy of notice that Section 66A only punished for information if sent from a computer device. If the information which is grossly offence or of menacing character is stored in a computer device, server or on internet that by itself would not attract provisions of 66A. So, some type of sending was involved meaning thereby information necessarily had to be transferred with the help of a computer device. It is important to mention that legislature knows the pulse of society. Legislators are the representatives of people. So as to come up to the expectation of public and to see that no annoyance is caused to any member of the society by offensive messages Section 66A was incorporated. And abolishing it altogether without exemplifying circumstances, cases wherein innocents could have been charged is not justified. Section 66A is required and is the need of the day so as to take the offender to book who are unnecessarily creating annoyance by sending offensive information to someone.
Justice Murphy in Chaplinsky v. New Hampshire held that resort to personal abuse is not in any proper sense communication of information or opinion safeguarded by the constitution, and its punishment as a criminal act would raise no question under that instrument. In other words what I want to highlight is that if somebody is abusing someone through mails, texts, multi media messages or otherwise certainly they need to be punished for that as it is causing annoyance to the victim of such offence.
- Hon’ble Supreme Court has criticized section 66A on the ground that term ‘persistently’ has not been defined. It is quite a common word employed which means repeatedly doing an act. More particularly if we have to see in the context of a person who is receiving persistent information whether he stands annoyed at the second information received or third or fourth. So if a person persistently causing annoyance or harass or threatens then that would come under the ambit of Section 66A.
Striking down Section 66A on the ground of vagueness therefore is not the right remedy as the Section in question was introduced with the intent of curbing the onset of the growing crime over internet. Even if the offences as under the ambit of Section 66A share certain similar elements with other section, but this itself is not a ground to remove the said section as in some other statutes offences are defined in a different way having a different ambit altogether. So it does not mean that if an offence of rape is defined under Indian Penal Code, 1860 that cannot be defined under Protection of Children from Sexual Offences Act, 2012.
- The objective with which Section 66A was incorporated in the Information Technology Act, 2000 is germane and still holds the field. As numerous kinds and forms of offences pertaining to dissemination of offensive information are still persisting, the mischief still looms at large and thrives with each successive day. The amendment which was introduced to suppress the mischief however is not in application and thus so far, any concrete provision to address trolls and cyber bullying and harassment is lacking. The objective which is still holding good is set aside and is made to suffer.
- Although in the present case even if we supposedly assumed that Section 66A was misused by police authorities and in other way it infringed the fundamental right of speech and expression but at the same time we must keep in our mind that so many offensive information is shared with the aid of internet by way of tweets, messages, images, videos and e-mails. In an article recently published on ten most common internet crimes, electronic harassment by sending offensive information to annoy, disturb, harass, abuse or threaten was considered the sixth most common crime worldwide. Many a times it is seen that a feud over social networking site between friends take an ugly shape and lead to the commission of heinous offences like murder and suicide. Often seen that offenders threaten girls for money or other favors else information pertaining to their private pictures and messages would be disseminated over the internet. Since Section 66A is no more in the statute, we are handicapped to address such issues and to punish such perpetrators who are committing such crimes over internet as part of their life routine.
In the totality of circumstances, the best-suited decision in the present case would have been that Section 66A should not have been made unconstitutional in-toto. The ground on which the said section is removed is because of vagueness and overbreadth of the section to robe in innocent. Since the counsels for the petitioners in the present case submitted that the terms used in the section are not defined and therefore can have a very wide range. So ideally the Hon’ble court should have asked the legislature or could have appointed amicus curie in the present matter to assist the court in defining terms used in the said section. Since the Supreme Court of India is empowered by virtue of Article 142 to pass any order in doing complete justice in a case, the Hon’ble Court should have brought out this tool to use and should have passed an order directing the parliament to define terms such as grossly offensive, menacing, annoyance etc so that offenders disseminating offensive information which causes annoyance, danger or threat via computer devices should be brought to law books under Section 66A of the Information Technology Act, 2000.
 (2013) 12 S.C.C. 73
  2 S.C.R. 821
 301 U.S. 242,259,57 S.Ct. 732,739,81 L.Ed. 1066.
 (1994) 3 SCC 569
  Supp. 3 S.C.R. 369
 (1950) SCR 594
 86 L Ed. 1031
 Stephen Nale, “the 10 most common internet crimes”,(22.04.2018,9:47pm), Source Link.