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Supreme Court upholds freedom of speech

Filed under: People and society by Hari
Posted on Thu, Mar 26, 2015 at 07:53 IST (last updated: Thu, Mar 26, 2015 @ 07:56 IST)

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In a landmark judgement in Shreya Singhal vs Union of India, delivered very recently, the Hon'ble Supreme Court of India has struck down Section 66A of the Information Technology Act 2000. This is a big boost for freedom of speech.

So what was section 66A all about? Here's the bare text of the provision:

"66-A. 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; or

(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 purposes 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, image, audio, video and any other electronic record, which may be transmitted with the message."

Basically this section potentially criminalized any online message that offended or annoyed anybody reading it. As such, the section was open to wide interpretation and had even led to arrests over re-posting or sharing content on FaceBook.

I think the original purpose of this section may have been to catch online spammers and scammers by casting a wide net over their activities. See the part about misleading identities. However, I think the section's net was cast too wide. Anybody posting any content could be hauled up by the law as per this section since the authorities can easily interpret the words "annoyance" and "inconvenience" to apply to any online content. Without doubt this section was draconian and absolutely against online freedom of speech, not just in theory but in actual practice as well. There had already been arrests in respect of this Section and the fear of legal harassment cast a big cloud over the cherished values of freedom of expression.

The thing is, criminal law already has well defined parameters to deal with exceptions to free speech such as defamation, incitement to hatred and violence, sedition and so on. While free speech purists might vehemently oppose certain laws in respect of the above, at least those provisions clearly delineate the criminal from the non-criminal kind of speech. But Section 66A of the Information Technology Act clearly allowed authorities to give wide interpretations and meanings to the words in the section and criminalize even legitimate criticism couched in strong enough language. There is a world of a difference between incitement to hatred and mere annoyance. Again, defamation is clearly a separate class of speech that is defined by precedents and case law.

The Hon'ble Supreme Court has rightly struck this section off on the ground of violation of Article 19(1)(a) of the Constitution of India. But I think the Supreme Court erred in holding that the section was not violative of Article 14 as well. Creating a class of offences specifically targetting one particular media was unreasonable and arbitrary, but the Supreme Court disagreed on the premise that the internet has the potential to reach a global audience instantaneously while the print media and other electronic media were fundamentally limited in reach. I think that though theoritically right, creating a specific class of crimes targetting one particular medium is unfair and wrong. For instance, you can be prosecuted for expressing an annoying opinion online, but not expressing the same on print or via national television reaching potentially millions of readers and viewers. In the above judgement, the Hon'ble Supreme Court has also refused to observe on procedural unfairness of the provision since they held that Section 66A was fundamentally unconstitutional in substantive law.

Overall, I think the Supreme Court has served the cause of democracy well in putting an end to this section. No civilized nation should be sanctioned by law to arrest a citizen merely on the ground of annoying or inconveniencing somebody else with their expression online. There are always remedies against the well-defined exceptions to freedom of speech as per the Constitution.

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