Is Section 66A of IT Act in India unconstitutional?

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Section 66A of the Information Technology (IT) Act has been widely criticized by free speech activists and legal eagles. Many have dismissed this controversial section of the IT Act as “unconstitutional” and “arbitrary”. Hence, there is a need to ponder over the inherent flaws of Section 66A and the reasons as to why it has received so much of flak from public intellectuals. Before delving into the nuances of Section 66A, we first need to revisit the status of freedom of speech and expression in the context of Indian democracy.

Freedom of speech and expression is a constitutional liberty which finds explicit mentioning under Article 19 (1) (A) of the Indian Constitution which states, “All citizens shall have the right to freedom of speech and expression.” However, freedom of speech is not an absolute right and has been subjected to reasonable restrictions enunciated under Article 19 (2). These restrictions prevent the citizens of the country from utilizing the freedom of speech in a manner which endangers the “sovereignty and integrity of India, the security of the state and friendly relations with foreign states.” Other restrictions pertain to public order, decency or morality, contempt of court, defamation and incitement to an offence.

Article 19 (2) clearly spells out the constitutional philosophy of the Indian State in regards to freedom of speech and expression. Absolutionism is alien to Indian Constitution. In fact, even the citadel of freedom and democracy, the United States of America too cannot claim to be an absolutionist when it comes to free speech. Though First Amendment Absolutionists including the late Christopher Hitches always advocated in favour of absolute free speech, court judgements in the United States have ruled otherwise. In the case of Schenck vs United States, Justice Oliver Holmes Jr. famously proclaimed that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” This basically meant that the First Amendment could not be used as a cover to spread falsehood.

The fact of the matter is that “your freedom ends where my nose begins.” Hence, arises the need for legislations like Section 66A of the IT Act. All forms of media are regulated via some kind of legislation. The internet or the social media remains largely unregulated. Several problems have been created in the past largely due to the unregulated nature of the internet. In the year 2012, shortly after the Assam riots, doctored videos of the violence in Rohingya were widely distributed on the web. It was claimed that these pictures were emerging from Assam. Through this sinister ploy an attempt was made by certain miscreants to divide the society which ultimately led to the exodus of a large number of North Eastern people from the southern parts of India. Last year’s deadly Muzaffarnagar riots were stoked because of a doctored video posted on Facebook.

By delving into history, we can cite several such instances of cyber crime. Section 66A of the IT Act is an attempt to deal with such excesses. Section 66A makes it an offence to use a computer resource or communication device to pass on information which might be “grossly offensive”. The foremost criticism of Section 66A of the IT Act is the one articulated by Shreya Singhal in her PIL wherein she has challenged the constitutionality of the provision by stating that it is too “ambiguous” and “vague”. Though, this line of argument is pragmatic, nevertheless, it is simultaneously preposterous. Whenever a law is written, it has to be taken into account that the said law stands the test of time. The internet is an ever evolving phenomena growing at a meteoric pace. If Section 66A is loosely framed and does not have a wider ambit then it is quite possible that many instances of hate speech and misinformation would go unchecked.

Secondly, those who frown at the usage of terms like menacing, grossly offensive, insult, injury, danger, enmity, annoyance and inconvenience within Section 66A, should come forward and explain how they would construe Article 19 (2) of the Constitution. Is there a way to possibly define what is moral and decent? Is there a perpetual methodology using which we can predict which speech would harm public order and which one won’t? For all such matters, we have relied on the wisdom of the judicial courts in India and so far, they have put on show a commendable effort. These things vary depending on the circumstances and the situation. Yes, an attempt has to be made by the legislators and the interpreters of the law to give meaning to or define those words which have been subjected to intense criticism. Some of the more ambiguous terms can be expunged but wisdom does not lie in repealing of the entire provision. The larger interest of the nation lies in far-sighted interpretation of the law instead of a parochial one.

In an Op-Ed for The Hindu (An unreasonable restriction, February 20, 2013), Aparna Vishwanath has enlisted the cases which have involved invocation of Section 66A. There is just one similarity in all the cases that have been mentioned. All of those cases have some political connection. Shaheen and her friend Renu, were arrested for criticizing the shutdown of Mumbai city in the aftermath of Bal Thackeray’s death. Jadavpur University Professor Ambikesh Mahaptra suffered because he chose to pass on cartoons poking fun at Mamata Banerjee.

The threat to Section 66A is coming from politicians and hence there is some merit in the argument which says that the section is susceptible to misuse. The solution to this concern lies in de-politicization of the police. Until and unless we achieve so, there is no law in India which the political class cannot use to its advantage. The Central Government had issued an advisory stating that in metropolitan cities Section 66A should not be invoked before consulting an officer of the rank of Inspector General of Police. This kind of a response does not settle the issue because the probability of political pressure is more intense at the higher level. The only solution is complete de-politicization of police as stated earlier. If that doesn’t occur, no matter which law it is, it will be misused.

Another reason why Section 66A cannot be ruled as unconstitutional is because the quantum of punishment which it carries is of just 3 years which is nothing as compared to life imprisonment which one might be subjected to if a person is booked under the law of sedition in the Indian Penal Code. The quantum of punishment under Section 66A, if proven guilty, is in no way opposed to the principles of natural justice. There has also been some controversy over the ambit of Section 66A. People seem to be confused between the words ‘sending’ and ‘publishing’. In his petition before the Bombay High Court (“Section 66A of IT ACT challenged as unconstitutional, Court seeks Centre’s reply,” NDTV, February 28, 2013), Manoj Oswal opined that “Section 66A has not been analysed from a technological aspect, and it does not apply to Facebook, Twitter, websites, blogs, etc. It applies where only a sender and receiver are involved.” Such contentions are indeed very technical and complicated. Therefore, it would be unwise to comment on this sub-judice matter.

However, Oswal’s other claim which basically states that the IT Act can “be misused against the media as almost all the TV channels and newspapers are available over the internet” is frivolous. Why should there be a difference in law for the common people and the media? The media derives its freedom of the press from the same law through which citizens have been empowered with the freedom of speech and expression. Then why should a law which covers common citizens not cover the media? More importantly, in the age of 24*7 news flow and communication, let us not consider our media and judiciary to be so toothless that they would happily allow Section 66A to muzzle down their rights. Is there even one case of arbitrary conviction by any court of law across India under the guise of Section 66A? The previous government’s defence of Section 66A was lacklustre. They made certain controversial references to laws in Britain which ideally should have been avoided. But you cannot blame them for that blunder since the Manmohan Singh Govt. had developed expertise in doing the right things in the wrong way. The concerns revolving around Section 66A are genuine but way too farfetched. Section 66A has irritants but to outrightly claim that it is unconstitutional is wrong.

http://www.countercurrents.org/sakhan281214.htm

(This article was originally published on Countercurrents.org.)

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Self Regulation vs Government Regulation

The Congress led UPA government has been heavily criticized by free speech activists ever since Union Telecom and HRD Minister Kapil Sibal made public the news that the government had instructed internet giants like Facebook, Google, Yahoo and Microsoft to screen all the content available on their website and block the objectionable ones. Sibal’s comments were frowned upon by India’s netizenry which puked at the very thought of internet patrolling. Eventually, Sibal had to take back his words and claim that he never pitched for pre-screening of content as it was a near impossibility but for post-screening through an internalized scrutiny-cum-regulation channel developed by the website itself.

This development was followed by yet another sensational one which came at the time of an interview of newly appointed PCI Chief, Retd. Justice Markandey Katju. Katju opined that he did not hold a very ‘high’ view of the media and considered ‘journalists’ to be ‘people with low intellect’. Katju emphasized upon three basic problems of the Indian media. He said that media was involved in dividing the society through irresponsible journalism. He cited the example of media reception to terror strikes to drive home his point. He said that whenever a terror strike takes place in the country, without any verification or veracity of the claims made to them by some organizations, the media starts coming up with some Muslim organization’s name and indicts them for the offence thus demonizing the Muslim community by giving out the impression that all Muslims were terrorists and bomb throwers.

Secondly, Justice Katju felt that the media was deflecting the concentration of the masses from the main problems of the nation which were socio-economic in nature. He said that some news channels were busy airing cricket all the time as if cricket was the problem of the country. He said that in the erstwhile Roman Empire, the emperors used to say, “If you can’t provide the masses bread, give them circuses.” Similarly in India, Justice Katju said, “If you can’t provide the masses bread, give them cricket” as cricket was like an ‘opium of the masses’.

Thirdly, Justice Katju said that the media was responsible for promoting superstitions and casteism in the country through reckless programs. He said that a large number of astrology shows which were being aired in the morning gave testimony to this fact. He described astrology as ‘humbug’. He said that India was going through the age of transition from being an ‘agricultural-feudal society’ to an ‘industrialized one’ and described this transition period in the words of the great poet Firaq as ‘Gunaho ki ghadi’ ie ‘Age of sins’ and a very painful period. He said that the Indian media should play a far more proactive role in promoting good values among people as the European Press did during the Age of Enlightenment. Katju said that the electronic media just like the print media should be brought under the ambit of the Press Council of India and the PCI should be given more teeth ie the power to levy fines on media organizations for propagating yellow journalism, to reduce the sanction of government advertising to those media outlets who were not following the set media standards and ethics and to cancel the licenses of those firms who were bent upon repeating the same mistakes.

Justice Katju’s announcement was met by a very hostile reception as he was heavily condemned and castigated by large sections of the media. He was described as a ‘Congress’ stooge who was taking all these initiatives on behalf of the government to throttle the growth of the ‘Anna Agitation’. Others stated that since there were already media self regulating bodies like the BEA and NBA, there was no need to bring the electronic media under the purview of the PCI as it would compromise on the autonomy of the media.  The most apt response to this argument was fielded by Justice Katju himself when he said, “Experience has shown that the claim of the broadcast media for self regulation was futile and meaningless because self regulation was an oxymoron.”  Justice Katju cited the examples of bodies like the Bar Council of India and the Medical Council of India.  He said that though these organizations were there to safeguard the interests of the lawyers and doctors, respectively but their existence did not mean that the government had no right to look into the proper functioning of the judiciary and the healthcare sector.  He said that if they also start sloganeering under the name of ‘self-regulation’ then there was no need for making any laws in the nation now as everybody was capable of governance through self. Katju said, “Regulation is different from control. In control, there is no freedom, but it is subject to reasonable restrictions in the public interest.”

In order to understand this stalemate, we need to first realize that Freedom of Speech and Expression is one of the foremost fundamental rights guaranteed to us by the Constitution. For democracy to flourish eternally, it is imperative that this particular right is upheld under all circumstances. However, due to contradictory or rather due to lack of clear cut comprehension of this liberty, the society has run into humongous amounts of turpitude which has resulted into colossal commotion, chaotic conditions and conniving controversies. The fundamental approach with which this fundamental right is approached needs to be rectified.

The Constitution of India grants all its citizens the freedom of speech and expression under Article 19 of the Constitution but the factor that needs to be kept into perspective over here is that this isn’t an absolute right. As citizens we were bestowed with numerous path-breaking and game-changing liberties but none of those liberties were what can be referred to as “absolute liberties”. All freedoms guaranteed to us are judicially enforceable but none of them are absolute in nature. The Constitution-makers acted with a lot of caution while weaving the Constitution. They ensured fundamental filtration of freedoms before their execution. Most of the pivotal rights which we’ve been guaranteed come with a set of riders and this was done intentionally so as to avoid confrontation. Freedom of Speech and Expression too comes along with a medley of riders or limitations. These riders include that the right of free speech shouldn’t be utilized to promote communal disharmony and hurt religious sentiments, shouldn’t go against public decency and morality, shouldn’t compromise the security and sovereignty of the state, must not affect friendly foreign relations with other countries and shouldn’t amount to contempt of court.

Amidst all this chaos, I failed to realize as to why was the Government being so heavily criticized for enforcing upon the constitution and the laws made therein. The argument that the government would use PCI as a tool to subvert media’s independence is flawed to core since there are already many such institutions whose role is that of a watchdog plus the PCI already has the print media under its ambit. It is merely asking for an institutional revival through strengthening of its arms and elongation of its purview. We now even have the proposal of establishing national judicial commissions which would look into the problems within the judiciary. I personally feel that this scepticism concerning government regulation on the media should be shunned as even the judiciary which has to have the highest amount of autonomy will now be scrutinized by the national judicial commission. The people who are opposing this move on account of absolutionsim in relation to free speech need to realize that absolute free speech is a utopian dream. The First Amendment to the United States’ Constitution quite clearly stated that the Congress would make no law which would abridge the Freedom of the Speech or of the Press but then too in the case of Schenck vs the United States in 1919, Justice Oliver Holmes Jr of the US Supreme Court held that speech which was dangerous and misleading could be curtailed. His judgment popularized the phrase ‘shouting fire in a crowded theatre’ (the actual phrase was falsely shouting fire in a crowded theatre) and is seen upon as the first permissible limitation on the First Amendment. On the basis of all these laws and past anecdotes, I personally hold the viewpoint that it is both constitutional and wise of the government to regulate the media.    

Prize Winning Speech Delivered at Debate Competition in Maharaja Agrasen College

The topic for today’s debate is that this house will honour religious sentiments by censoring creative expression and I, Saif Ahmad Khan, will speak for the motion. All freedoms guaranteed to us by the Constitution are justiciable but none of them are absolute in nature. Freedom of Speech and Expression is one of the foremost rights guaranteed to us and Article 19 of the Constitution deals with it. This right like all other fundamental rights is coupled with a set of riders. These riders include that the right of free speech shouldn’t be utilized to violate communal harmony, religious sentiments, public order, morality, decency, security of the state and must not amount to contempt of court.

The fundamental approach with which this fundamental right is approached needs to be rectified. Constructive criticism of religion is always welcome, it’s laudable and commendable but blasphemy, communal instigation and provocation to undertake sacrilege are indeed unholy and unconstitutional. An individual falls well within the ambit of the freedom of speech and expression when he criticizes the caste system in Hinduism or the status of women in Islam but if somebody abuses or questions the character of Prophet Mohammad as Mr Rushdie did, if somebody paints a Hindu God in the nude as Mr Hussain did or if somebody recommends demolition of mosques as Mr Swamy did, he is indeed indulging in absolute abuse of the freedom of speech and expression. These are all controversies involving blatant blasphemy and despotic defamation of deities which is capable of fueling anarchy.

I do agree that protestors against these people have not waged their dissent democratically but the fact remains that you are secular if you respect the Constitution and the restrictions imposed by it. Whether those restrictions are reasonable or unreasonable can always be tested in a court of law. I would like to conclude by stating that within the realm of our rights, our freedoms are absolute but we are not entitled to supersede the sphere of our rights by denigrating another community’s religion. All creations which bypass constitutional restrictions are bound to get banned. 

Blasphemy & Freedom of Speech – Strict Laws Not Street Laws

Freedom of Speech and Expression is one of the foremost fundamental rights guaranteed to us by the Constitution. For democracy to flourish eternally, it is imperative that this particular right is upheld under all circumstances. However, due to contradictory or rather due to lack of clear cut comprehension of this liberty, the society has run into humongous amounts of turpitude which has resulted into colossal commotion, chaotic conditions and conniving controversies. The fundamental approach with which this fundamental right is approached needs to be rectified.

The Constitution of India grants all its citizens the freedom of speech and expression under Article 19 of the Constitution but the factor that needs to be kept into perspective over here is that this isn’t an absolute right. As citizens we were bestowed with numerous path-breaking and game-changing liberties but none of those liberties were what can be referred to as “absolute liberties”. All freedoms guaranteed to us are judicially enforceable but none of them are absolute in nature. The Constitution-makers acted with a lot of caution while weaving the Constitution. They ensured fundamental filtration of freedoms before their execution. Most of the pivotal rights which we’ve been guaranteed come with a set of riders and this was done intentionally so as to avoid confrontation. Freedom of Speech and Expression too comes along with a medley of riders or limitations. These riders include that the right of free speech shouldn’t be utilized to promote communal disharmony and hurt religious sentiments, shouldn’t go against public decency and morality, shouldn’t compromise the security and sovereignty of the state, must not affect friendly foreign relations with other countries and shouldn’t amount to contempt of court.

Now that the freedom of speech and expression has been clearly put forth, its time to address the core issue of blasphemy. Blasphemy is basically the practice of disrespecting and ridiculing religious beliefs, divine scriptures and holy figures. Living in a secular and democratic state, where one is entitled to the freedom of speech and expression doesn’t provide anyone with the right to produce or promote blasphemy. I have every right to make use of a particular right in a constructive way but I have no right to exercise a right in a way which might be detrimental or destructive for others. Constructive criticism of religion is always laudable, commendable and welcome but blasphemy is lacklustre, condemnable and unholy. An individual falls well within the ambit of the freedom of speech and expression when he talks about the ills of various religions. You cannot stop an individual from talking about the caste or sati system in Hinduism or the status of women in Islam nor can opprobrium of undemocratic and dictatorial Islamic regimes, colonialist Christian establishments be run down in the name of blasphemy or abuse of freedom of speech and expression but if somebody questions the character of Jesus Christ, abuses Prophet Mohammed, paints a Hindu God in the nude, makes fun of a Sikh Guru’s turban or Lord Buddha’s bald head, he is indeed breeding blasphemy and indulging in absolute-abuse of the freedom of speech and expression.

Whenever such a kind of an issue arises there is a natural uproar but the dissenters have had a history of becoming a part of the problem instead of actually solving it. If anybody indulges in blasphemy, there is a legitimate way out to get that person punished. You can drag him to a court of law and ensure that he is taken to task but over the years the dissenters have done everything apart from doing this. To deal with blasphemy we need strict laws, not street laws. We cannot let issues like these be decided on the streets where you straightaway go and assassinate the person accused of blasphemy without allowing the law to take its own course. The problem with fanatic right-wingers, intolerant fundamentalists and anarchy-creators is that many a times they flag genuine concerns but their violent reactions (which are on exhibition when they go about vandalizing and torching stuff) align them in the same position as the one who has committed the offence of blasphemy. These dissenters are alien to the concept of displaying dissent democratically which is by approaching a court of law. The second problem with these dissenters is that they are fundamentally opposed to all sorts of commentary on religion or criticism of it, no matter how constructive it might be and are unwilling to reform and refine their own religion. Such is their intolerance that even euphemism isn’t a possible way out while commenting on critical religious matters.

A thorough analysis of the entire controversy surrounding blasphemy paints a very vindictive picture of what is actually going on. There are people who are abusing the freedom of speech and expression and simultaneously we have people waging dissent in the most undemocratic form. Extremism breeds extremism, fanaticism breeds fanaticism and hate breeds hate. This shall continue until and unless we do away with shrillness and resort to soberness.