Date: 10th December 2014
Rajeev Chandrasekhar v. U.O.I. & Anr., W.P. (C) No. 23/2013
Section(s) Challenged: S. 66A and the Information Technology (Intermediaries guidelines) Rules, 2011
Arguing Counsel: Mr. Sajan Poovayya
Mr. Poovayya’s written submission on S.66A can be found here
Mr. Poovayya stated his arguments by stating that the restrictions imposed on speech under s.66A are beyond the narrow and stringent limits that have been set for abridgement of the right of freedom of speech and expression under art. 19. He stated that the limitations created by s.66A are beyond the permissible limits set under art. 19(2). However, Mr. Poovayya did not expand upon his argument as he stated that lawyers who argued before him have already put this argument forth.
Mr. Poovayya submitted that s.66A has three sets of standalone offences under 66A(a), 66A(b) and 66A(c). He stated that 66A(b) may have some rationality to it as a mental element and knowledge has been brought in. In cases of 66A(a) and 66A(c) he again stated that they by themselves create standalone offences and therefore communication with no intent or knowledge is criminalized within the ambit of the section. Mr. Poovayya then read 66A(a) and 66A(c) as they would apply dehors 66A(b).
He provided an example and stated that if he were to call someone over a telephone and make a communication orally and say that a person’s style of functioning is not well or make some communication which is unpleasant and that person is annoyed, no charge can be brought under the IT Act and even possibly under IPC as causing offence is not a chargeable provision under the IPC. But if the same communication in its entirety as words is sent by his cellphone by virtue of a text message, it will be a crime under 66A(c). J. Chalmeshwar pointed out that even oral communication over the phone including VoIP calls can be brought under this. Mr. Poovayya agreed and stated that the same activity undertaken by a different medium cannot be criminalized in one medium and not in the other. He gave another example and stated that he may have sent an email to a politician stating what he has done is wrong. The email may be annoying whereas the same thing said in an open letter, which is reported in a newspaper will not fall within the ambit of 66A(c) but the email will by virtue of being sent through electronic medium.
J. Chalmeshwar asked Mr. Poovayya to clarify the distinction between 66A(a) and 66A(c) as 66A(a) talks about any information and 66A(c) about information carried through a mail. Mr. Poovayya stated that in terms of the information that a particular mail or a transmission will carry there is no distinction between 66A(a), 66A(b) and 66A(c). However, the distinction between these three are broadly in two sets. 66A(b) is a standalone provision. To this the bench asked Mr. Poovayya to distinguish between 66A(a) and 66A(c) and that they will take up 66A(b) later. Mr. Poovayya stated that the distinction between 66A(a) and 66A(c) is that the nature of the result that the communication may have on the last person or anybody who reads it.
J. Chalmeshwar then pointed out that 66A(c) contains the words ‘for the purpose of’ and thus there is some mens rea. Mr. Poovayya agreed and said that it atleast some indirect element of men rea that I must have the intention that I am sending it to annoy you and 66A(a) is irrespective of whether its menacing to me or anyone else.
Mr. Poovayyas then stated that under 66A political satire or criticism of a authority can be stifled in the country. He stated that dehors where I come from, dehors in what manner is the communication put, dehors in what circumstances the communication emanated. Dehors all of it there is criminality under s.66A. The words grossly offensive and menacing are based on the mental subjective satisfaction or determination of the recipient rather than any other community test. He further stated in a SCOTUS case, even a community test cannot be attributed and it must be a statutory test. He stated that there must be ingredients for what is menacing so that a person may conduct or govern himself in manner to not do that, otherwise the law as it stands today effectively tells a person that he can speak but not send an electronic communication to anybody. J. Bobde stated that the difference between 66A(a) and 66A(c) seems to be that 66A(a) need not be through a mail.
Mr. Poovayya then provided the Court with the historical context of the Internet starting with passive Internet or Web 1.0 where it was a medium to store information and medium to communicate and disseminate information. He then moved onto Web 2.0, in which he stated the web stopped being a passive medium and became and interactive medium by which one can communicate to one or one to many or many to one. This lead to the emergence of social networking site since Internet graduated towards secondary form of governance mechanism in Web 2.0.
He took an example of a social networking platform where a person puts some information on a page about a movie actor. That comment is not a one to one communication will fall under 66A(a) and not under 66A(c), since 66A(c) speaks of electronic mail or electronic mail message. The words electronic mail and mail message take care of both Web 1.0 and Web 2.0 because 66A(c) can cover communication which is one to one or one to many for example in a closed user group. 66A(c) in traditional sense takes care of some commination that I disseminate knowing who the recipient is.
Mr. Poovayya then explained the concept of a ‘spam’ to the bench stating that it is an unsolicited electronic message typically emerging from a single source but meant to be disseminated to multiple sources. It is unwelcome, unsolicited and typically in a form of an advertisement. He then explained the concept of phishing to the bench. He then stated that both these instances are covered under 66A(c). He submitted that 66A(a) and 66A(c) may interoperate to a large extent and same message may fall under both the provisions. J. Bobde observed that 66A(a) will include 66A(c) but it may not be the other way around. Mr. Poovayya stated that in case a person sending a mail has not intention of causing annoyance but if the mail is offensive it will be covered by 66A(a). Mr. Poovayya then submitted that under 66A(c) there are two different offences:
- Any person who sends, by means of a computer resource or a communication device any electronic mail or electronic mail massage for the purpose of causing annoyance or inconvenience.
- Any person who sends, by means of a computer resource or a communication device any electronic mail or electronic mail massage to deceive or to mislead the addressee or recipient about the origin of such massage
He then submitted that the second part deals with the issue of phishing.
Mr. Poovayya then stated that the law is not proportional. He stated that if a person is initiating a threat or intimidation he may be covered under IPC for which the maximum punishment can be 7 years. If a person sent a communication, which is defamatory, the punishment under IPC is a maximum of 2 years. He stated that 66A brackets the entire spectrum of sentence of similar offences under IPC in a 3-year sentence and this is disproportional.
J. Chalmeshwar stated that a person speaking something on street corner and that being heard by a limited number of people may be very different than a person posting something on the Internet. J. Bobde observed that were these sections enacted because there is some different way of committing these offences over the Internet.
Mr. Poovayya the provided the background of the enactment of the Act and stated that once the law was promulgated it was found out that it did not cater to many aspects and therefore in 2006 a committee was established to draft certain amendments which pertained to e-commence and criminality in terms of identify theft and phishing as financial transactions started taking place over the Internet. It was not constituted to draft offences for activates over the Internet as they were very different from activity in the physical world. When the bill was to be tabled in 2006 a standing committee of the Parliament stated that the bill should not be tabled as it way beyond its scope. It was sent back to Deity. Subsequent to this the terrorist attacks in Mumbai took place in November 2008 and subsequent to this the amendments were made.
He submitted that these amendments to offences were made as a basket however s.66A stands out among all these. Mr. Poovayya read various other provisions of the Act including ss. 66B, 66C, 66D, 66E, 66F and stated that all of these require intent and have safeguards and are clearly defined. S.66A when juxtaposed with other sections clearly demonstrate the vagueness in it. He then stated than when a law criminalizes speech over the Internet a person should at least know what is reasonably allowed over it and what is not.
Mr. Poovayya agreed with the observation of the bench that the absence of mental element cannot by itself be a ground to challenge the validity of a provision, however, as a citizen if there is no mental element the citizen should know the limits till which he can exercise his right.
J. Bobde observed that the s.66A(a) makes mere sending of information an offence and the asked whether mere sending involves mens rea in relation to a particular person aggrieved. He further asked what is the status of men rea vis a vis the messages which are without an addressee. He further added that under the section it’s not even necessary that the message is received, the moment the message is sent the offence is committed.
Mr. Poovayya explained the technological aspects and stated that 66A(a) captures the multilayer user structure of the net. He stated and in a single layer structure there is one person communicating to another, whereas, in a multilayer for example a person uploads someone on a Facebook page, even though the recipients are not denoted, everyone in the person’s network gets those messages. J. Bobde observed that since mere sending is an offence there need not be mens rea against certain individual person except the subject of the matter and said that this is akin to putting up an obscene poster at a street corner. The ASG stated that there are various cases where people receive malware and other mails with viruses and mere sending of such is an offence and this was the intention behind the provision. J. Chalmeshwar then referred to the provision of negligent driving and said that this is somewhat similar provision in which no mens rea is required. Mr. Poovayya stated that in that case atleast there was a clarity that I knew that if I was driving I might endanger lives.
Mr. Poovaya stated that in no jurisdiction of the word has a private communication from an electronic mail which is one to one has been criminalized. Mr. Poovayya stated that in US and UK what is criminalized is sending something offensive in a public communication system.
Mr. Poovaya then stated that his submission on 66A is that a combination of vagueness and element of just actus reus. He further added in western hemisphere when such offences are criminalized they are summary offences and punishment is a maximum of 6 months or fine. In our case it is sentence and fine. These offences in virtual domain make no sense to a human beings to determine their conduct.
Mr. Poovayya the stated has his second argument is on a statute of some similar nature and he has to make that since he was unable to locate any pari material provision anywhere. The question that came up in America was whose standard should be used to test whether the information is annoying or offensive etc. Mr. Poovayya refereed to the case of Reno v. ACLU. Mr. Poovayya added that the act in Reno was one step better than 66A as there was a threshold of indecent message. The US Act stated that the standard to be used to test for patently offensive will be a community standard however, under 66A there is no standard and the only standard is of the recipient or the complainant. He referred to parts of the judgment where it was held that the terms indecent and patently offensive were so vague that the criminal enforcement of either section would violate fundamental rights. He referred to the terms under s.66A and stated that unless these are defined these are completely open ended and prone to abuse. If as a citizen I am not aware of the limits placed, I am choose not to speak at all and the law will silence speakers whose messages have constitutional protections. A political satire has constitutional protection but I may choose not to say that as the statute is vague and do not know what consequence will follow.
Mr. Poovayya stated that courage and bravado starts from certainty and if a person knows that he will be violating the law that is bravado but in case where the person does not know he will tread very carefully and will be considered weak. He then referred to the part of Reno where the community standard was struck down. He stated that in case of the Internet your audience is the entire country so which community standard would be applicable. J. Chalmeshwar asked whether when the audience is the entire nation should the standard not be that of the community most likely to be offended by such message.
Mr. Poovayya stated that vagueness would be looked at with a far greater benchmark when it comes to Internet activities as the target audience is so varied that unless a statute specifically states that a person will do certain thing and no do certain thing it will be violative. J. Bobde stated that one view can be that since its known that the audience over the Internet is so wide that a person should be careful to not offend anybody. Mr. Poovayya replied saying that, that is exactly what is chilling effect and will lead to censorship. J. Bobde stated that the petitioners are equating speaking as offending. The law as we understand says do not offend people and there is absolutely no cap on anyone speaking whatever they want. The only thing is if it can be offensive and if a person knows that there are people of different sensibilities, the person should make sure that she does not offend anybody and this is a part of living peacefully. J. Bobde said if suing words a person can use safer words which won’t offend anybody. Mr. Poovayya replied that Roscoe Pound state that law is minimum morality but in this case the law cannot tell me to use the safer words, if I do not want to. J. Bobde stated then such words should be used against person who does not mind to which Mr. Poovayya replied that the problem is that the recipient in a lot of cases is not known over the Internet. J. Bobde stated that please do not equate s.66A with a law that silences, it does not stop any person from saying anything to which Mr. Poovayya replied that the law chills the person, to which J. Bobde stated that it chills you only to the extent of saying something offensive. Mr. Poovayya replied saying that that particular thing may not be offensive by his or his community standards and the problem is that what is offensive is not defined.
J.Bobde stated that on the Internet a person is addressing the entire world community and someone who is speaking at the U.N. needs to be more careful in choice of her words than someone who is speaking in her drawing room. J. Bobde further added that this is a vexed issue and in all the arguments one thing that he has observed is that the injunction to be careful is being read as an injunction to be quiet. He again stated that this is not a law, which silences anyone, and the bench is sure of that and it may be a law which discourages certain kind of speech. Mr. Poovayya as a response to J. Bobde’s remarks stated that the fact that a person will be expected to speak in language which is not offensive to anyone comes to the common minimum denominator and the person has to see whose tolerance limit is the least and then cater speech according to that. J. Bobde enquires whether that does not happen and Mr. Poovaya relied that that is not free speech guaranteed by the Constitution.
J. Bobde stated that free speech does not mean freedom to say whatever a person wants. If certain laws (eg: defamation, contempt of court) require a person to be careful that is not violative of free speech. Mr. Poovaya stated that under 66A(c) one of his major concerns is the use of the term inconvenience and stated that it will always be inconvenient for someone to hear their criticism. Justice Bobde stated that menacing is not vague and it means is instilling fear without a direct threat to a person and everyone understands menacing. He further added that everyone knows what is offensive language. There are certain things which are offensive to every person. Mr. Poovayya stated that in Reno the term patently offensive was held to be vague and on what standard it is to be judged. J. Bobde replied stating that there are different standards and that SCOTUS was dealing with its own case. Mr. Poovayya stated that for his standard he might use the best possible language however someone in Lucknow might find it to be offensive and he will be booked under the provision.
Mr. Poovayya stated that his next submission is that the response of state time and again has been that these are one off cases of arrest, however that is not the intent of the statue. The statue was initially brought to cover malware, viruses etc.
Mr. Poovayya refereed to s.66 and s. 43 of the Act and stated that each of the offences which otherwise IPC does not cover since certain activates happen only in the virtual world have been covered by s. 43 and s.66 as rest of the offences take place both in virtual and physical world and are covered by IPC.
Mr. Poovayya stated that s.66A is an afterthought and the establishment does not like criticism on the Internet. He stated that a Government can control newspapers or physical demonstrations but cannot stop criticism over the Internet and the only way is to criminalize speech over the Internet and in the present case a person will not say anything because she is not aware of the extent of the restriction and does not know what is wrong.
J. Bobde stated that people receive menacing or threatening calls, however they cannot stop it since the number is located in a place, which is beyond the reach of the national authority. The ASG stated that for most of cases the IP address of the content is shown in obscure place and a person cannot be traced and the only remedy can be to block it. He further stated that most of the foreign units of intermediaries or service providers do not cooperate and do not give information. Mr. Poovaya said that blocking is a completely different sphere as compared to free speech of an Indian citizen and it is not a case where the message is coming from a proxy server in Russia. The ASG replied saying that the offensive message can come from a proxy server in Russia. To this Mr. Poovayya stated that criminalizing speech does not help in any way as that message will still come from the proxy server and this does not take care of that.
J. Bobde inquired whether in case where an Indian citizen uses a server in another country to send messages to another citizen, can such message be stopped. Mr. Poovayya stated that today the technology is such that any proxy server can be identified and that the CERT in India is possibly the best as compared to the others around the world. Mr. Poovayya stated that proxy servers in the first instance cannot be identified however, everyone computer has an IP address, which is similar to the IMEI number in a mobile. He further added that the mere fact that there is difficulty in technology to identify who the culprit is that does not give room to criminalize speech.
Mr. Poovayya said that the law per se when it says you will not do certain things is not a silencer law as such but criminalizing such speech silences speech. He added that the essence of free speech is the fulcrum of democracy. He added that free speech is not inconsistent to restriction on it under art. 19(2).
Moving to his last submission Mr. Poovayya added that a mere fact that the State has issued an advisory that no arrests must be made under Section 66A without the prior approval of a senior police officer, does not cure the vagueness or the invalidity of the section. The threshold with which the constitutional validity of provision is tested is looked at from what the statute says. It cannot be that the statute is invalid but operated in a valid manner. He referred to the case of Collector of Customs, Madras v. Nathella Sampathu Chetty.