Cyber Anarchy Unleashed… says S.N.Ravichandran commenting on striking down of Section 66A

Mr S.N.Ravichandran, a member of Cyber Society of India and a person having extensive experience of having worked with Cyber Crime victims as well as Law Enforcement Officials in Coimbatore has sent the following views about the recent Supreme Court decision in the Shreya Singhal Vs Union of India case.

The views of Mr Ravichandran is corroborated by today’s TOI report where a policeman posted obscene information (Refer article: Cop misreads 66A relief, posts porn clips on WhatsApp group with DIG, SSPs in it). Yet another report says “After SC scrapped 66 A,  Sec 67 lands an IT prof in prison“.

Experts continue to have differing views. But most of the experts who have experience in working with Cyber Crime cases are not entirely happy with the decision while the human rights activists are in the fore front of hailing the decision.  Most of the prominent persons are however moderate in their expression since they want to be seen as not criticizing the highest court of the land. Mr Pavan Duggal therefore concludes “Legislative language must ensure balance between curbing rights and protecting them“.

What we are repeatedly saying is that there is that striking down of the section was done without appreciating that the section had nothing to do with the attack on free speech indulged in by the Police.  Such abuses will continue with or without Section 66A and with or without ITA 2000. Mere possibility of abuse should not the ground for removing the section because a logical extension of this principle will remove the more than half of our laws.  Mr Ravichandran’s observations are on similar lines and he presents his case with conviction and elaborately.

Naavi

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QUOTE:

Cyber Anarchy Unleashed Courtesy The Supreme Court of India

The strength or infirmity of a judgment sometimes depends on a single fact presented properly or improperly, appreciated wholly or partially and conclusions drawn from the presentation. If facts presented are viewed by a mind clouded by preconceived notions and/or is driven by the cacophony of noise made by vested interests then that judgment is bound to be flawed. The judgment given by the Supreme Court on Section 66A falls in such a category.

 This probably is one of the few cases where the petitioner has presented facts arising out of misconception and presumption, the respondents have responded without conviction and with ignorance of the subject and the judgment delivered without applying one’s mind. My objections after reading the judgment arise from the following points.

The judgment starts at para 20:

20. With these prefatory remarks, we will now go to the other aspects of the challenge made in these writ petitions and argued before us.  .Article 19(1)(a) –Section 66A has been challenged on the ground that it casts the net very wide – “all information” that is disseminated over the internet is included within its reach. It will be useful to note that Section 2(v) of Information Technology Act, 2000 defines information as follows:

“2. Definitions.—(1) In this Act, unless the context otherwise requires,—

(v) “Information” includes data, message, text images, sound, voice, codes, computer programmes, software and databases or micro film or computer generated micro fiche.”

Two things will be noticed. The first is that the definition is an inclusive one. Second, the definition does not refer to what the content of information can be. In fact, it refers only to the medium through which such information is disseminated. It is clear, therefore, that the petitioners are correct in saying that the public’s right to know is directly affected by Section 66A. Information of all kinds is roped in – such information may have scientific, literary or artistic value, it may refer to current events, it may be obscene or seditious.

That such information may cause annoyance or inconvenience to some is how the offence is made out. It is clear that the right of the people to know – the market place of ideas – which the internet provides to persons of all kinds is what attracts Section 66A. That the information sent has to be annoying, inconvenient, grossly offensive etc., also shows that no distinction is made between mere discussion or advocacy of a particular point of view which may be annoying or inconvenient or grossly offensive to some and incitement by which such words lead to an imminent causal connection with public disorder, security of State etc.

The petitioners are right in saying that Section 66A in creating an offence against persons who use the internet and annoy or cause inconvenience very clearly affects the freedom of speech and expression of the citizenry of India at large in that such speech or expression is directly curbed by the creation of the offence contained in Section 66A.

“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,—

………..or to deceive or to mislead the addressee or recipient

 The petitioner’s assumption that Section 66A covers “all information disseminated on the net” is completely wrong.

 The Section only talks of “any information”. It talks only of particular  information sent by a person to a recipient. The information between the sender and the recipient alone is the subject of the section. Again only that information between the sender and the recipient which is qualified by the adjectives “offensive, menacing etc” is sought to be punished.  Further the Section does not envisage the sensitivity of a third person, not involved in the correspondence, to take umbrage at the tone of the information. It is the recipient who must be affected by such messages.

Section 66 A restricts itself only to that information which is objected to, by the recipient. Section 66 A further qualifies the above statement by saying that the recipient must affected by such messages.

Section 66 A also lays down the condition that the information so sent must be false to be taken cognizance of.  

It goes further to tell that the recipient must have received the messages “persistently”.

It also mentions that the sender must have done it anonymously.

It is surprising that a simple reading of the Section, which would have lent clarity to the subject, was not done by the petitioner, the respondent and/or by their Lordships.

Section 66 A does not, by any stretch of imagination, encompass the net and all the information posted on it as wrongly claimed by the petitioner. It concerns only with messages between a person and a recipient who could be another person or group of persons.

The definition of information as given in the Act is an inclusive one. That it is restricted to cyber space as far as this act goes only proves that considerable thought has gone into the formulation. The Act concerns itself only with crimes committed in Cyber space or with/or on computers, computer resources etc. It does not concern itself with information or crimes committed outside this realm.

It is inconceivable how the Hon’ble Judge presumed that the Section  covered “all the information” on the entire net, when the wording of the Section 66 A itself points out that it is restricted to only those computer, computer resources etc through which the information travels from one person to another. While the net is a medium through which the information travels from one person to another  Section 66 A restricts itself to only that portion of the net or cyber equipment or Cyber space which has been used by sender to send the message.

It does not talk or imply or cover other parts of cyber space or equipment through which information posted by other persons through, or, on different parts of the net for public consumption or private conversations. No restrictions are envisaged or can be seen to be covered by this section regarding posting, uploading, sharing, communicating information other than what has been stated above.

The petition has erred by claiming that all information posted on the net falls in the ambit of this section. The respondent has erred by not refuting this argument and instead requesting the Court to reframe the Section and the Court has erroneously assumed that the petitioner and the respondent are aware of what they are debating about and has passed a judgment without going through the Section and considering the ramification of the sweeping observation made. Ignorance has been compounded by lack of conviction and given legal sanctity by the strings of ill considered and thoughtless observation.

His Lordship has leapt from defining information to the presumption that the Section concerns only with the medium of transmission. From this understanding a conclusion that the petitioner is correct in her contention that the public’s right to information has been affected has been arrived at. How such a wild and presumptuous conclusion is arrived at is not explained.

Section 66 A talks specifically of information in the form of messages exchanged between a person as a sender and a recipient through the medium of cyberspace. Where does the public come into the picture? How is the right of the public to information affected? Is it the Lordship’s contention that the public has a right to the information shared between two individuals or two private parties?

Having said this one cannot but conclude that the basic premise of the petition is flawed. It therefore necessarily follows that the conclusion reached on this premise would be wrong. Section 66 A and the offences specified under it does not violate any provision of Section 19(1) on the citizen’s Right to Freedom and Expression. From this conclusion it follows that any discussion on Section 19(2) is unnecessary, irrelevant, immaterial and infructous. The judgment is required to be set aside on this ground alone.

35. This decision lays down the test that has to be formulated in all these cases. We have to ask ourselves the question: does a particular act lead to disturbance of the current life of the community or does it merely affect an individual leaving the tranquility of society undisturbed? Going by this test, it is clear that Section 66A is intended to punish any person who uses the internet to disseminate any information that falls within the sub-clauses of Section 66A. It will be immediately noticed that the recipient of the written word that is sent by the person who is accused of the offence is not of any importance so far as this Section is concerned. (Save and except where under sub-clause (c) the addressee or recipient is deceived or misled about the origin of a particular message.) It is clear, therefore, that the information that is disseminated may be to one individual or several individuals. The Section makes no distinction between mass dissemination and dissemination to one person. Further, the Section does not require that such message should have a clear tendency to disrupt public order. Such message need not have any potential which could disturb the community at large. The nexus between the message and action that may be taken based on the message is conspicuously absent – there is no ingredient in this offence of inciting anybody to do anything which a reasonable man would then say would have the tendency of being an immediate threat to public safety or tranquility. On all these counts, it is clear that the Section has no proximate relationship to public order whatsoever. The example of a guest at a hotel `annoying’ girls is telling – this Court has held that mere `annoyance’ need not cause disturbance of public order. Under Section 66A, the offence is complete by sending a message for the purpose of causing annoyance, either `persistently’ or otherwise without in any manner impacting public order

Selective reading of Section 66A leads to selective understanding. Selective reading of the Section with a mindset leads to blinkered understanding. Selective and blinkered understanding does not lead to a fair and clear appreciation of the objects and reasons of the subject. The Additional Solicitor General talks of information disseminated on the net and media and publishing at length. All of which have no bearing or relevance to Section 66 A which is about private messages or information exchanged between two or more individuals. Information shared between two or more individuals over e-mail, mobile phones on a one to one basis or on a conference call, or messages sent over any of the social media sites including Twitter is between the sender and the recipient and is not for public consumption. If by reasons of not taking precautions to secure the communications, the information or message is revealed to the public, even then, since the communication is not addressed to the general public, cognizance of any hurt, or annoyance caused to the unintended reader of the message cannot be taken. His Lordship has accepted that the Section has no proximate relationship to public order.

He also mentions that the section does not contain any ingredient in this offence of inciting anybody to do anything which a reasonable man would then say would have the tendency of being an immediate threat to public safety or tranquility   Then the natural conclusion would be that the Section refers to a private relationship or transaction which is of no interest to the public. If that is the case then how does one conclude that it affects Freedom of Speech and Expression? This observation only confirms that the Section deals with the dispatch of information in the form of a message from one person to one or several persons and in the event that a recipient finds it distasteful he or she has the right to lodge a complaint and have action initiated against the sender of the message after due investigation.

By declaring this section as unconstitutional the Hon’ble Judge has infringed on the fundament Right of Redressal and the Fundamental Right to Freedom to move, act, speak and express within the boundaries of law which is guaranteed by the Constitution. This judgment has extended  protection to a stalker or a bully to send unwanted, obscene, annoying, harassing, offensive and menacing messages to vulnerable individual and groups of individuals in society. His Lordship has assumed that the Section does not give importance to the recipient’s sensitivity just because the recipient is addressed only in section (c).

How this conclusion is arrived at is beyond explanation.

That there is a sender and a recipient is implicitly and explicitly indicated in the Section. It has also been observed that the Section does not discriminate between individual dissemination or mass dissemination. While this observation is correct the moot point is how does it affect the constitutionality of the Section.  The purpose of the Section is to determine if an offence is committed and the punishment is specified for it.

An offence is committed irrespective of whether the message has been communicated to a single or mass gathering if the investigation is able to prove that there was an intention on the part of the sender to hurt, annoy, offend or menace the recipient be he one or several.  In para 21 of the CA No 749,750, 751,752,764,765,766 of 2003 P Nedumaran vs State The Madras High Court has quoted extensively from authoritative pronouncement of the  pronouncement  of  the  Apex Court  in  People’s Union for Civil Liberties case, cited supra, in respect of the interpretation of the provisions of Sec.49(6),  Sec.49(7)  and  Sec.21  of POTA, it will not be necessary for us to examine the nature of the offences in the light  of  the submissions made before us. 

In so far as the provisions of Sec.21 of POTA is concerned, the Supreme Court holds: “But the petitioners apprehension regarding the absence of mens rea  in  these sections and  the  possibility of consequent misuse needs our elucidation.  It is the cardinal principle of criminal jurisprudence that mens rea  element  is necessary to  constitute a crime.  It is the general rule that a penal statute presupposes mens rea element.  It will be excluded  only  if  the  legislature expressly postulate otherwise.” (Emphasis is mine)

Referring to  the  KARTAR  SINGH  v.  STATE OF PUNJAB (1994 (3) SCC 569) , the Supreme Court then further goes on to hold:

“Mens rea by necessary implication could be excluded from a statue only where it is  absolutely  clear  that the implementation of the object of the Statue would otherwise be defeated.  Here we need  to  find  out  whether  there  are sufficient  grounds  for  inferring  that  Parliament  intended to exclude the general rule regarding mens rea element.”

 The Supreme Court then referred to the decisions in STATE  OF  MAHARASHTRA  v.M.H.  GEORGE (AIR  1965  SC 722); NATHULAL v.  STATE OF M.P.  (AIR 1966 SC 43) and INDER SAIN v.  STATE OF PUNJAB (1973 (2) SCC 3 72) and further observed:

 “Offence under section 3(1) of POTA will be constituted only if it is done with an –

 ‘intent’.  If Parliament stipulates that the ‘ terrorist act’ itself has  to be committed with the criminal intention, can it be said that a person who ‘profess’ (as under section  20)  or  ‘  invites  support’  or  ‘arranges, manages,  or  assist  in  arranging  or  managing  a  meeting’ or ‘addresses a meeting’ (as under section 21) has committed the offence if he does  not  have an intention or design to further the activities of any terrorist organization or the commission of terrorist acts?  We are clear that it is not. 

Therefore, it  is  obvious  that  the offence under Section 20 or 21 or 22 needs positive inference that a person has acted with intent  of  furthering  or  encouraging terrorist activity  or  facilitating  its  commission.   In other words, these Sections are limited  only  to  those  activities  that  have  the  intent  of encouraging  or  furthering  or  promoting  or  facilitating the commission of terrorist activities.  If these Sections are understood  in  this  way,  there cannot be  any  misuse.   With this clarification we uphold the constitutional validity of Sections 20, 21 and 22.  “

 Mens Rea is an essential component of any offense and it has to be established.

 Then the question of clear and present danger discourse comes up

41. Viewed at either by the standpoint of the clear and present danger test or the tendency to create public disorder, Section 66A would not pass muster as it has no element of any tendency to create public disorder which ought to be an essential ingredient of the offence which it creates.

When the test of Clear and Present Danger is applied to public order Section 66 A would not pass muster. This is natural because Section 66 A is not about an offence which would create public disorder. The Clear and Present Danger when applied to the individual who receives an offensive or menacing call or message is what the section addresses.  I have quoted from the above judgment extracts from the same US Court examples cited to show how this Section is essential for protection of an individual from threats-

“Interestingly, the US Courts have gone on to make a further refinement. The State may ban what is called a “true threat”.

 “’True threats’ encompass those statements where the speaker means to communicate a serious expressionof an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

 “The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”

See Virginia v. Black (Supra) and Watts v. United States 22 L. Ed. 2d. 664 at 667

While the US Courts has been extensively quoted on the sanctity of Freedom of Speech and its importance to democracy it is puzzling to note that its recommendation for the State to step in and make laws to protect an individual or a group of individuals from being threatened is ignored.  To add insult to injury the judgment now overturns laws made by the State to protect a citizen’s right to freedom, life and liberty in guise of protecting his Right to Freedom of Speech and Expression.

The attention of the Court is drawn to two cases of national importance where messages sent over the mobile phone went viral and created panic situation.

In the first instance in 2008 at the height of the global sub-prime loan crisis when banks were falling all over the world a SMS from a person stating that “ICICI bank was on the verge of bankruptcy” led to a run on the bank and it required the RBI to intervene with substantial funds to retrieve the situation

In the second instance it may be recalled that an SMS message regarding mass targeting of people in the North East led to an exodus of the people from different parts of the country to the North East.

 These two instances are sufficient grounds to show that messages can do have the propensity to create public disorder or instill fear in the public on a mass scale. If these examples are taken into account then the argument that 19(2) is not satisfied does not wash. The Section cannot be dismissed as constitutionally invalid. It is surprising that the respondents did not quote these examples.

44. Equally, Section 66A has no proximate connection with incitement to commit an offence. Firstly, the information disseminated over the internet need not be information which “incites” anybody at all. Written words may be sent that may be purely in the realm of “discussion” or “advocacy” of a “particular point of view”. Further, the mere causing of annoyance, inconvenience, danger etc., or being grossly offensive or having a menacing character are not offences under the Penal Code at all. They may be ingredients of certain offences under the Penal Code but are not offences in themselves. For these reasons, Section 66A has nothing to do with “incitement to an offence”. As Section 66A severely curtails information that may be sent on the internet based on whether it is grossly offensive, annoying, inconvenient, etc. and being unrelated to any of the eight subject matters under Article 19(2) must, therefore, fall foul of Article 19(1)(a), and not being saved under Article 19(2), is declared as unconstitutional.

It is irrational to presume and make sweeping statements that information disseminated over the internet need not be information which “incites” anybody at all. It may be pointed out that in several cases in the US and UK the reason for children committing suicide or individual’s killing other people or raping women has been traced to pernicious information on ways and means of committing suicide, killing people and pornographic material available on the net including pedophilic material,  threatening messages, bullying messages,  defamatory information being posted on the net.  It is for this reason that Section 67 of the Information Technology Act has been promulgated to prevent such information from being openly disseminated over the net. 

Section 66 A addresses such of that information which when communicated to a target would either be a crime itself (sending inappropriate material to a child) or induce or force a victim to submit to the attacker. It is quite possible that such targeted communications could cause a crime to be committed by the recipient in self defense against such insidious attempts if no other avenue is left open to him/her for redressal.

This judgment has ensured that. Is it the Court’s contention that a violent reaction from a harassed victim alone will ensure the Court’s intervention to uphold his/her Right to Life and Liberty? Looking at the issue from this point of view the government has every right to enact laws to prevent any action which would incite violence on an individual or a group of individuals and not necessarily the public. Under this argument Section 19(2) would definitely apply and the Section is constitutionally validated.

Attention of the Supreme Court is drawn to the following settled case:-

In the case filed by A.K.Gopalan against the State of Madras, Union of India May19 1950 the Court pointed out that ” Thus the right to freedom of speech and expression is given by 19 (1) (a). But clause (2) provides that such right shall not prevent the operation of a law which relates to libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State. Clause (2) thus only emphasizes that while the individual citizen has a free right of speech or expression, he cannot be permitted to use the same to the detriment of a similar right in another citizen or to the detriment of the State. Thus, all laws of libel, slander, contempt of Court or laws in respect of matters which offend against decency or morality are reaffirmed to be operative in spite of this individual right of the citizen to freedom of speech and expression.

I would also like to mention at this point that the Supreme Court has frowned on the practice of quoting foreign judgments at the drop of a hat particularly when our own Court has decided on issues. It would have been in the fitness of things if the case quoted above had been cited as it has a direct bearing on the subject.

 What has been said with regard to public order and incitement to an offence equally applies here. Section 66A cannot possibly 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 – in fact the word ‘obscene’ is conspicuous by its absence in Section 66A.

What has been said with regard to public order and incitement applies equally applies here. Section 66 A covers offences which falls within the expression of decency or morality which may offend or annoy the recipient of the message.  For example a simple message saying “I love you” sent a thousand times to a married woman by a person who is not her husband fall s squarely in this expression. Anonymous calls at unearthly hours done persistently over a period of time could be considered as annoying.  Calling a senior government official on his official phone and talking inanities is also an offence. Obscenity is not included in Section 66A since it is covered under Section 67.

48. However, the learned Additional Solicitor General asked us to read into Section 66A each of the subject matters contained in Article 19(2) in order to save the constitutionality of the provision. We are afraid that such an exercise is not possible for the simple reason that when the legislature intended to do so, it provided for some of the subject matters contained in Article 19(2) in Section 69A. We would be doing complete violence to the language of Section 66A if we were to read into it something that was never intended to be read into it.Further, he argued that the statute should be made workable, and the following should be read into Section 66A:

“(i) Information which would appear highly abusive, insulting, pejorative, offensive by reasonable person in general, judged by the standards of an open and just multi-caste, multi-religious, multi racial society;

– Director of Public Prosecutions v. Collins –(2006) 1 WLR 2223 @ para 9 and 21

– Connolly v. Director of Public Prosecutions reported in [2008] 1 W.L.R. 276/2007 [1] All ER 1012

– House of Lords Select Committee 1st Report of Session 2014-2015 on Communications titled as “Social Media And Criminal Offences” @ pg 260 of compilation of judgments Vol I Part B

(ii) Information which is directed to incite or can produce imminent lawless action Brandenburg v.Ohio 395 U.S. 444 (1969);

(iii) Information which may constitute credible threats of violence to the person or damage;

(iv) Information which stirs the public to anger, invites violent disputes brings about condition of violent unrest and disturbances; Terminiello v. Chicago 337 US 1 (1949)

(v) Information which advocates or teaches the duty, necessity or proprietary of violence as a means of accomplishing political, social or religious reform and/or justifies commissioning of violent acts with an intent to exemplify glorify such violent means to accomplish political, social, economical or religious reforms [Whitney vs. California 274 US 357];

(vi) Information which contains fighting or abusive material;

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

(vii) Information which promotes hate speech i.e.

(a)Information which propagates hatred towards individual or a groups, on the basis of race, religion, religion, casteism, ethnicity,

(b)Information which is intended to show the supremacy of one particular religion/race/caste by making disparaging, abusive and/or highly inflammatory remarks against religion/race/caste.

(c) Information depicting religious deities, holy persons, holy symbols, holy books which are created to insult or to show contempt or lack of reverence for such religious deities, holy persons, holy symbols, holy books or towards something which is considered sacred or inviolable.

(viii) Satirical or iconoclastic cartoon and caricature which fails the test laid down in Hustler Magazine,Inc. v. Falwell 485 U.S. 46 (1988)

(ix) Information which glorifies terrorism and use of drugs;

(x) Information which infringes right of privacy of the others and includes acts of cyber bullying, harassment or stalking.

(xi) Information which is obscene and has the tendency to arouse feeling or revealing an overt sexual desire and should be suggestive of depraved mind and designed to excite sexual passion in persons who are likely to see it.Aveek Sarkar and Anr. vs. State of West Bengaland Ors. (2014) 4 SCC 257.

(xii) Context and background test of obscenity. Information which is posted in such a context or background which has a consequential effect of outraging the modesty of the pictured individual.

Aveek Sarkar and Anr. vs. State of West Bengal and Ors. (2014) 4 SCC 257.”

49. What the learned Additional Solicitor General is asking us to do is not to read down Section 66A – he is asking for a wholesale substitution of the provision which is obviously not possible.

The learned Additional Solicitor General has erroneously asked the Court to read matters in Section 66A which do not fall in its ambit. However having said that it may be pointed out the following points (i, ii iii, vii (a,b and c), x) are part of Section 66 A. While the Court has rightfully declined to read down the Section it need not have jettisoned the entire section since the purpose of Section 66 A is to define such offences and make it punishable.

82. These two cases illustrate how judicially trained minds would find a person guilty or not guilty depending upon the Judge’s notion of what is “grossly offensive” or “menacing”. In Collins’ case, both the Leicestershire Justices and two Judges of the Queen’s Bench would have acquitted Collins whereas the House of Lords convicted him. Similarly, in the Chambers case, the Crown Court would have convicted Chambers whereas the Queen’s Bench acquitted him. If judicially trained minds can come to diametrically opposite conclusions on the same set of facts it is obvious that expressions such as “grossly offensive”or “menacing” 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. This being the case, having regard also to the two English precedents cited by the learned Additional Solicitor General, it is clear that Section 66A is unconstitutionally vague.

A complete reading of the above two cases would have shown the Court the conclusion that the Queen’s Bench arrived at.

In DPP v Collins [2006] 1 WLR 2223 Lord Bingham said:

“Section 127(1)(a) does of course interfere with a person’s right to freedom of expression. But it is a restriction clearly prescribed by statute. It is directed to a legitimate objective, preventing the use of a public electronic communications network for attacking the reputations and rights of others. It goes no further than is necessary in a democratic society to achieve that end.”

He therefore concluded that section 127(1), in itself, did not infringe Article 10 of European Convention of Human Rights.

The European Convention of Human Rights and the United Nation Convention on Human Rights provide for reasonable restrictions to be placed on the fundamental rights of freedom of Speech and Expression.

In Conally vs DPP (UK) http://www.5rb.com/docs/Conolly-v-DPP QBD 2015 20 Feb 2007.pdf   the court observed that:

“A person who sends an indecent or grossly offensive communication for a political or educational purpose will not be guilty of the offence unless it is proved that his purpose was also to cause distress or anxiety. In other words, the nature of the communication may shed light on the defendant’s mens rea. But I do not see how the fact that a communication is political or educational in nature can have any bearing on whether it is indecent or grossly offensive”.

 And further ” the words “grossly offensive” and “indecent” are ordinary English words. They are not used in a special sense in section 1 of the 1988 Act”

In the same case Lord Dyson has observed

What about “for the protection of the rights of others”? Little case-law was cited to us as to what this phrase means. In Chassagnou v France (1999) 29 EHRR 615, 687 para 113, the ECtHR said that the “rights of others” included, but were not restricted to, the Convention rights of others. They said: “It is a different matter where restrictions are imposed on a right or freedom guaranteed by the Convention in order to protect “rights and freedoms” not, as such, enunciated therein. In such a case only indisputable imperatives can justify interference with enjoyment of a Convention right”.

In Jersild v Denmark (1994) 19 EHRR 1, the ECtHR held that there had been a violation of article 10 when three youths were prosecuted for taking part in a television programme about racism in Denmark. The youths made racist remarks during the course of their television interview. The ECtHR found that the programme was not made for the purpose of propagating racist views. The court acknowledged that the remarks would have been “more than insulting to the targeted groups” (para 35) and was clearly of the view that the prosecution by the Danish authorities was aimed at the protection of the “rights of others” ie the victims of racist remarks. The prosecution was to further this legitimate aim.

But the court concluded that it was not necessary in a democratic society. This can be seen clearly at para 37: “Having regard to the foregoing, the reasons adduced in support of the applicant’s conviction and sentence were not sufficient to establish convincingly that the interference thereby occasioned with the enjoyment of his right to freedom of expression was “necessary in a democratic society”; in particular the means Judgment Approved by the court for handing down. Veronica Connelly v Director of Public Prosecutions Draft 22 March 2007 12:54 Page 10 employed were disproportionate to the aim of protecting “the reputation or rights of others”. Accordingly the measures give rise to a breach of Article 10 of the Convention”.

The protection of the right not to be insulted by racist remarks was a legitimate aim within article 10(2). It was a “right of others” which, by implication, must have been considered to be an “indisputable imperative” (to use the language of Chassgnou).

If grossly offensive and menacing are ordinary English words then the meaning which is given to these words must be taken literally. The words can be considered offensive or menacing only if the sender’s purpose was to cause distress or anxiety in the recipient. The message should be malicious in intent. The words of the message should throw light on the reason for the communication. It is part of the investigation and the judge to establish the intent of the sender of the message.

The Court has stated that judicially trained minds cannot come to an agreement on what is offensive and what is menacing and that it is subject to the predilection of the judge. It is precisely for this reason that cases go on appeal from the magistrate to the sessions to the High Court and finally to the Supreme Court.  The belief is that higher the Court greater is the experience of the Judge and more balanced will be the judgment. Now how fair is it to throw out a law just because two judges do not agree to a common interpretation? If this is the raison d’etre for throwing out Section 66 A then most of the existing laws will also have to be thrown out because differing interpretations have been given at different times by different Judges in the same Court.

The words like annoyance, offensive, menacing etc are not vague terms. They have specific meanings as given in the judgment itself. While the meanings are well defined the problem lies in establishing the degree of hurt or annoyance or fear or offense that a person feels on receiving such a communications. This will vary from human to human depending on gender, age, culture, customs, geography, education senstivity etc. It is for this particular reason that these words have not been defined to the point of certainty. It is not possible or desirable to   design a one size fit all shoe. Words which are subjective in nature cannot be legislated upon. It is left to the Court to decide the depth of offense caused and decide accordingly. In that process if judges differ then so be it. The decision of the highest body will prevail. Dismissing Section 66 A on these grounds is not the solution.

The same sense has been communicated in Criminal Appeal 913/2010 in the Supreme Court Judgement Dated:4/28/2010  filed by S.Khushboo vs Kanniammal & Another under Section 499,500 &505.  This judgments highlights the fact that for a charge of defamation to apply the complainant must prove that elements of mens rea and actus reus are present and the remarks must be a direct one against any individual, company, association or body of people.

These observations can also be extended to the interpretation of Section 66A and it provides the necessary protection to any person sending information or message over a computer system or a computer enabled communication system. The Section when read along with the above judgment gives protection to the freedom of speech guaranteed by the Constitution.

90. These two Constitution Bench decisions bind us and would apply directly on Section 66A. We, therefore, hold 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.

As already stated earlier Section 66 A does not cover all the information posted or communicated over the net. It is restricted to only that portion of information which a recipient may find hurtful or annoying or offensive or menacing. Extending the section to information over and beyond its purpose, labeling it as sweeping and overly broad and then holding it as unconstitutional is akin to giving a dog a bad name and hanging it for that name.

92. In this case, it is the converse proposition which would really apply if the learned Additional Solicitor General’s argument is to be accepted. If Section 66A is otherwise invalid, it cannot be saved by an assurance from the learned Additional Solicitor General that it will be administered in a reasonable manner. Governments may come and Governments may go but Section 66A goes on forever. An assurance from the present Government even if carried out faithfully would not bind any successor Government. It must, therefore, be held that Section 66A must be judged on its own merits without any reference to how well it may be administered.

Section 66 A is not an invalid proposition in any manner. The learned Asst. Solicitor General’s assurance to prevent the abuse of law is a direct consequence to the petitioner’s request to repeal the section since it was abused.  The assurance is not a reflection on the validity of the Section. Governments may come and Governments may go but it is the interpretation of the Section in the Supreme Court which will stand till such time as the findings are overturned at a later period of time when another set of Justices view the Section from a different perspective and circumstances. Change is part of human existence.

The requirement for the law was felt and Section 66 A was introduced. Yes the section has been abused in about six incidents. It must be pointed that in all the six incidents the Supreme Court has come to the rescue of the victims which is as it should be. In all the six incidents the role of the lower judiciary is also to be highlighted. A reasonable solution that could have been suggested was to have the lower judiciary educated on the law. If the lower judiciary is not able to appreciate the law then the judge has to be changed, not the law. More stringent punishment can be prescribed for misuse of the law.  Throwing out the law on specious conditions is not a solution.

93. The argument of the learned Additional Solicitor General on this score is reproduced by us verbatim from one of his written submissions:

“Furthermore it is respectfully submitted that in the event of Hon’ble Court not being satisfied about the constitutional validity of either any expression or apart of the provision, the Doctrine of Severability as enshrined under Article 13 may be resorted to.”

It is unfortunate that the Learned Solicitor General instead of mounting a robust defense of the Section has himself suggested that constitutional validity of any expression could be treated under the Doctrine of Severability by the Supreme Court. This suggestion could only have risen from a lack of conviction on his part on the section. Lack of confidence about one’s own position is half the battle lost even before entering the battlefield. As far as victims are concerned the Asst. Solicitor General has rendered them a signal dis-service.

96. 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 present is a 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. We therefore hold that no part of Section 66A is severable and the provision as a whole must be declared unconstitutional.

It has been explained why Section 66 A cannot be declared as unconstitutional in the above paragraphs if these arguments can be accepted then it follows that the above observation by the Hon’ble Supreme Court is also in error. Section 66 A falls squarely in the subject matter of 19(2) and 19(6) since public morality, public order and the Right to life and liberty are addressed in this Section. Section 66 A must be declared to be constitutional.

Par 99 to 101 makes observation on the Procedural infirmity of the Section. Extensive references have been made to the procedures for media and defamation and causing enmity between different religions have been made.  Section 66 A deals only with messages and communication between individuals and groups of individuals on aone to ne basis. It does not deal with information addressed to the public at large. Therefore citing sections from Cr.P.C and applying it to Section 66 A is not relevant or material. The Supreme Court could have observed accordingly. Para 111 of the same judgment contradict the position taken in these paragraphs.

All the arguments cited above apply equally to Section 118 (d) of the K.P. Act of 2011.

I rest my Case.

S.N.Ravichandran

Coimbatore 641 043

29.03.2015.

UNQUOTE