The final arguments in the set of Shreya Singhal cases which challenge the constitutionality of various sections of the Information Technology Act, 2000 case were being heard by a Supreme Court Division Bench comprising Justice J. Chelameswar and Justice S.A. Bobde.
Over the next few days we will be publishing our notes of the proceedings.
Date: 9th December 2014
The Assistant Solicitor General (ASG) Mr. Tushar Mehta informed the Court that they have filed the reply in the lead petition (Shreya Singhal) and certain connected matters. However, since there were a number of connected matters, they will need more time to go through those and file replies.
Subsequent to this the ASG handed over a number of documents in a sealed envelope to the bench and requested the bench to pursue the material that has been blocked. The lawyers of the petitioners objected to not being given a copy of the same.
Subsequent to this, the bench see to have quickly saw the material and asked the lawyers to start the arguments.
The ASG stated that the petition and the challenges to s. 66A are based on some stray incident and abuse of power. To this J. Chalmeshwar replied saying that the abuse is ‘egregious’ and should be checked. The ASG clarified that the Government is not justifying the abuse.
One of the lawyer for a petitioner pointed out that for banning a book a notice under CrPC has to be provided, however when the e-book of the same is to be banned no such requirement is there. The ASG also stated that though some of the petitions were genuine some of them were not so and that there was ‘shadow boxing’ by some social media sites.
Subsequent to this Mr. Soli Sorabjee started his arguments in lead matter of Shreya Singhal v. Union of India, W.P. (Crl.) No. 167/2012
Shreya Singhal v. Union of India, W.P. (Crl.) No. 167/2012
Section Challenged: S. 66A of the IT Act
Arguing Counsel: Mr. Soli Sorabjee
Mr. Sorabjee’s written submission can be found here.
Mr. Sorabjee started with the legislative history of the IT Act. He stated that the Act was enacted in 2000 and read out the preamble of the Act stating that the purpose of the Act was to provide legal recognition and encourage e-commerce and to give effect to a United Nations General Assembly resolution A/RES/51/162 on the Model Law on Electronic Commerce.
Subsequent to this Mr. Sorabjee drew the bench’s attention to the original Act of 2000 and went to various sections including S. 66 and 67. He then read out sections 66E inserted through the amended act and stated that there was no issue with it since it was covered by Article 19(2) of the Indian Constitution.
Mr. Sorabjee argued that section 66A of the Act was not covered by Article 19(2). He stated that though he agrees that no right is absolute, however for a restriction under Article 19(2) three prerequisite must be there:
- There must be a law
- The restriction must be under one of the grounds specified under Article 19(2)
- The restriction should be reasonable and not vague
He referred to the case of Sakal Papers [1962 (3) SCR 842] to put forth his point and read out paragraphs from page 868. He stated that the terms under s. 66A were vague and nebulous.
Referring to the documents provided in sealed cover at the start of the hearing, Mr. Sorabjee stated that even if after the perusal of the content of these documents it emerges that these are in the interest of general public and s. 66A is used in the interest of general public, this will still not be enough for the restrictions as interest of general public is not a ground under art.19 (2). He referred to the cases of Romesh Thapar and R. Rajagopal.
J. Chalmeshwar pointed out that on a bare reading of the section under 66A (b) the information must be false and the person sending it should know it is false and the information should be sent persistently. If the information is true this does not allow and a stray instance of sending such information may not attract this.
Mr. Sorabjee stated that the terms used in the section are vague and stated by an example that if some minister is not carrying out his duties properly and someone points that out, that may be grossly offensive to the minister. To this J. Chalmeshwar observed that what is offensive is a matter of value judgment and same speech can have different meanings in different context.
J. Chalmeshwar then asked Mr. Sorabjee if grossly offensive could be brought under the decency head found in art. 19(2). Mr. Sorabjee stated that we cannot stretch the grounds provided and the Freedom of expression should be preserved and given the widest amplitude. J. Chalmeshwar asked what’s the meaning of decency under 19(2)? To this Mr. Sorabjee replied that it the standard of reasonable person in a society to which J. Chalmeshwar agreed. J. Chalmeshwar subsequently stated that whether any reasonable man will come to a conclusion whether particular information is grossly offensive or not is an individual choice but can just on that count can we say that the provision is unconstitutional? Mr. Sorabjee pointed to s. 67 of the Act and stated that decency and the said section can cover obscenity. To this J. Chalmeshwar stated that then we need to look whether ‘grossly offensive’ as provided has any meaning and is supposed to cover any acts which are beyond the scope of S. 67. Mr. Sorabjee stated that there is no objective standard and what is grossly offensive depends on person to person and in this case on the opinion of a statutory authority. J. Bobde stated that it depends on the statutory authority only for the purpose of initiating the proceedings however the final decisions is with the courts whether the person is guilty or not. Mr. Sorabjee stated that in that case there will be a chilling effect.
J. Chalmeshwar stated that supposed that the law (s. 66A) is declared unconstitutional, then if a person gets an offensive message everyday, nothing can be done about it. Mr. Sorabjee said if a statement is offensive without being indecent or lascivious it falls outside the scope of Art. 19(2). J. Clameshwar said that a lot of statements can be offensive without being indecent and Mr. Sorabjee replied that then it is outside the scope of art. 19(2).
Moving on to s.66A(b) Mr. Sorabjee stated that the terms are very vague and subjective. J. Bobde stated that under IPC what is punishable is intimidating message sent from one person to another and on the Internet what seems to be a problem is that these messages are not sent to a particular person lot of times. Assuming that a message if a general threat to a community, then a person cannot go under IPC because the authorities will say that it is not directly targeted to you. Mr. Sorabjee that it is already covered under s. 153A IPC. J. Chalmeshwar stated that IPC states whoever by words written or spoke and does not talk about electronic communication.
Mr. Sorabjee stated that IPC has been interpreted in such a way. He then stated that his main issue with the words grossly offensive and J. Chalmeshwar observed that people in power get annoyed very fast. Mr. Sorabjee stated that this section can be used to have serious political censorship. Mr. Sorabjee then read out the meaning of some of these terms from the Dictionary and stated that there cannot be these vague expression to have restrictions on free speech. J. Bobde stated that based on these vague terms you cannot make criminal offences; these might be unpleasant words however you cannot punish a person under this. Mr. Sorabjee stated that no offence should be there for such terms but definitely not criminal offence. J. Chalmeshwar observed that if a person does not have a sense of humor then even a cartoon can be offensive. Mr. Sorabjee stated that I might have a certain opinion that you may find very unpleasant and offensive.
Mr. Sorabjee then refereed to certain cases of vagueness. State of M.P. v. Baldeo Prasad, 1961 (1) SCR 970 and referred to pages 970 and 979. The case dealt with a section, which provided powers to police to detain ‘gunda’, however the court held who is a gunda is very vague. He then referred to the cases of Harakchand Ratanchand Banthia v. Union of India, 1969 (2) SCC 166 and K.A. Abbas v. Union of India, 1970 (2) SCC 780 and SCOTUS case of Burstyn v. Wilson, where he read out parts of the concurring judgment of J. Frankfurter.
Based on a query by the bench Mr. Sorabjee stated that this section is applying censorship. He the stated that there have been various instances in which the section has been applied in an arbitrary manner and the vagueness is inherent in the said section. He then gave certain examples including of Prof. Mahapatra in Kolkata, the Pahalgar arrests, the Hudhud cyclone case.
He the stated that the said Section has a chilling effect on freedom of speech and expression and is thus violative of art. 19(1)(a). Mr. Sorabjee then explained the concept of chilling effect and cited two cases (R. Rajgopal v. State of Tamil Nadu, 1994 (6) SCC 632; S. Khusboo v. Kanniammal, 2010 (5) SCC 600) in which the Supreme Court has recognized this concept in India. He stated that self censorship is absolutely detrimental to a democracy.
He also stated the case of Cricket Association of Bengal to state that freedom of speech also includes the right to receive information and this has great significance in a country like India.
He concluded that the impugned heads of s. 66A cannot be served and are inextricably linked with other provisions of the said Section, however he would not present detailed arguments on this and leave it to the bench. He also stated that there are sections in IPC, which take care of all the offences under IT Act. J. Chalmeshwar stated that that would require a wider debate and each of those sections will have to be examined and seen whether it meets the requirement of electronic communication and if the petitioners are serious and want to argue that submission the Court will like hear them in detail. J. Bobde stated that another questions which needs to be looked into is whether IPC was found inadequate to deal with these issues and that is why the offences were made under the IT Act and whether this is a special situation which cannot be covered under IPC. Mr. Sorabjee stated that if such is the case then also these grounds should be brought under at. 19(2). J. Clameshwar gave the example of the Dramatic Performances act and stated that visual/spoken expressions might require a certain different and special law.