By: Abhishek Unnithan, Rajiv Gandhi National University of Law
INTRODUCTION
“If Liberty means anything at all, it means the right to tell people things they do not want to hear.” This is the foundational social contract underpinning every free society. A civilized, democratic government rests on the quality of public discourse and this is engendered by the clashing of dissenting ideas and opinions. A democracy attempting to gag the free flow of expression is simply paying lip service to its democratic credentials. The tremendous explosion offset by the rise of the Internet has fundamentally altered the way people receive and transmit information. The Internet has manufactured a culture of mass amateurization, an era where anybody with a computer connection can be a media outlet. Incendiary news that could have been suppressed by the state’s iron fist now travels with the speed of wildfire[i]. Governments around the world have felt the heat caused by this digital revolution and often taken steps to gag free speech, under the pretext of maintaining social order.
A legal tool of the same colour was enacted by the Indian Government in the form of Section 66A of the Information Technology Act, 2000. The Information Technology Act was enacted to provide legal recognition to the burgeoning sector of e-commerce as well as effectively combat the array of cybercrimes arriving in its wake. In 2008, the Act was amended to introduce Section 66A which empowered law enforcement authorities to arrest citizens for sending “offensive and menacing” messages and was passed without discussion in the Parliament. The section vested police officials with the authority to make arrests based on messages which were construed to be “offensive” or “menacing” or “for the purpose of causing annoyance, inconvenience, danger, obstruction, insult” etc. The punishment, extending up to a prison term of three years, could be arbitrarily meted out to anybody sending “offensive” messages via a computer or any other communication device[ii].
The biggest criticism of the law pertained to the vague definition of “offensive” messages and the enormous power vested with police officials in determining what fell under this category. Legal scholars and activists pointed out that “offensive” was a purely subjective term and could not be effectively employed as a legal parameter. What one person deems to be inoffensive may infuriate someone else. This created a malicious opportunity for police officials to abuse the law and haul up anyone who might have a dissenting opinion. The law thus violated the fundamental right to free speech and expression (Article 19(1)(a)) and right to life (Article 21) as enshrined in the Constitution. Proponents of the law argued that strict legal punishments were necessary to curtail the abuse of information technology, especially social media and that the law was protected under the “reasonable restriction” clause elucidated in Article 19(2) of the Constitution.
When the issue finally came up before the Supreme Court in the case of Shreya Singhal vs. Union of India (AIR 2015 SC 1523)[iii], the apex court struck down Section 66A for being “unconstitutionally vague” and derailed the state’s attempt to gag free speech on the Internet. This was a significant decision which recognized the explosive power of the Internet in transcending traditional media and created a channel for unfettered access to information. The landmark judgement was rightly applauded across the country and around the world as a vehement pushback against state depredation and a resonant victory for free speech. Given the strongly worded pronouncements of the Supreme Court, it was assumed that Section 66A would never be invoked again and remain confined to scholarly discussions surrounding free speech in India.
However, this was not to be the case. Recently, the Supreme Court expressed its disappointment at the continued and widespread use of the obsolete provision by law enforcement authorities, calling it a “shocking state of affairs.” According to Senior Counsel Sanjay Parikh and advocate Aparna Bhatt representing the People’s Union of Civil Liberties (PUCL), around 1000 cases have been registered under Section 66A of the Information Technology Act[iv]. Acting with alacrity, the apex court demanded a response from the Centre at this illegal feat of judicial necromancy. The Centre has now instructed state governments to not register cases under the repealed section and withdraw any cases already registered.
Though the Supreme Court and the Ministry of Home Affairs acted swiftly to prevent any further injustice to occur as a result of this perversion of constitutional rights, the issue is a stark reminder of the lacuna that exists between judicial pronouncements and its everyday implementation. The case is a demonstration of the gulf that resides between the higher echelons of India’s legal system and the lives of ordinary citizens. It must be noted how an aggressive and ignorant police machinery uses arcane and obsolete legal provisions to harass citizens, many of whom remain unaware of the minutiae of the law. Complexity of the judgement is no defence for the police machinery to engage in such a blatant disobedience of the law and begs the question of how such a dazzlingly clear violation went without notice. The issue reveals the importance to sensitize police officers and other state agencies as well as the wider citizenry of the workings of law and move it out of an esoteric circle of judges, lawyers and scholars.
THE SHREYA SINGHAL CASE
Shreya Singhal, a Delhi based law student, filed the first petition challenging the constitutional validity of Section 66A. At the heart of the petition was the arrest and detention of two girls, Shaheen Dhada & Rinu Srinivasan of Palghar, for criticising the lockdown imposed in Maharashtra following the death of Shiv Sena supremo Bal Thackeray in 2012. The comments were posted on Facebook and predictably irked many people. The girls were detained for 10 days, initially charged for spreading hatred and later under Section 66A of the Information Technology Act. Though they were released later on, the case created a public uproar and highlighted the draconian powers vested in public officials by Section 66A. The right to free speech and expression, an essential foundation of any democratic society, was felt to be grossly violated by an over-enthusiastic police machinery.
Shreya Singhal argued that the law was in direct violation of Article 19(1)(a) of the Constitution which guaranteed the fundamental right to free speech and expression. The public interest litigation (PIL) filed by Shreya pointed out how the law was routinely abused (as in the Palghar case) to curb freedom of expression and crush dissenting views. The petitioners argued that though the section was initially enacted to prevent misuse of opportunities offered by information technology, it armed law enforcement agencies with vast powers which could be easily deployed against innocuous citizens. There was a veil of vagueness surrounding different terms of the section, lending itself to idiosyncratic interpretations. The law went beyond the ambit of the “reasonable restriction” clause specified under Article 19(2) and was, therefore, unconstitutional. Later on, several writ petitions were filed by individuals, NGOs and companies challenging the validity of Section 66A, which were clubbed together under the Shreya Singhal case and heard by a two-judge bench consisting of Justices Jasti Chelameswar and Rohinton F Nariman[v].
On March 24, 2015, the learned judges struck down Section 66A, declaring the law to be unconstitutional “for being violative of Article 19(1)(a) and not protected under Article 19(2).” Three decisions were taken by the apex court; firstly, Section 66A was struck down in its entirety and deemed unconstitutional. Secondly, Section 69A of the Act was deemed constitutionally valid along with the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009. Thirdly, the bench also decided Section 79 to be valid, subject to some restraints. Section 79 provided that no social media “intermediary would be legally liable for any third-party information, data, or communication made available or hosted by him.”[vi]
This landmark judgement upheld the fundamental right to free speech and was a solid judicial pushback against an overzealous executive. The bench recognised that the tremendous powers with which the section armed the police machinery could be a chilling weapon against free speech and public discourse. The parameters employed by the section were so vague, and thus effectively limitless, that it transcended any ambit of reasonable restriction. By curtailing the dictatorial attitudes of the executive, the judiciary made sure that the contours of free speech were well-adapted to the Internet age. This judgement was coupled with the realization of the Internet’s extraordinary ability in transmitting information at lightning speed. This produced a culture where news was no longer the exclusive domain of news organisations. In such a climate, a legal provision granting limitless authority to the state would be a catastrophic disaster.
A FLOOD OF MUTINY
It is a settled principle of law that a judicial pronouncement striking down a legal statute immediately makes it invalid. It ceases to exist as a law and becomes non est. This is the powerful function vested in the judiciary as the guardian of the Constitution and empowering it to push back against state encroachment. Article 129 of the Constitution provides that the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Article 215 extends this power to High Courts as well. Article 141 declares that the law declared by the Supreme Court shall be binding on all courts within the territory of India. This is consistent with the role the Constitution has spelled out for the judiciary: dispension of justice. To be an effective arbiter of justice, it is essential that the judicial declarations are carried out in full spirit of the letter. Compliance with the pronouncements of the court should be the highest priority for all agents of law, since any intended or unintended effect can only be ascertained following this.
However, as Senior Counsel Sanjay Parikh and advocate Aparna Bhatt pointed out, effective implementation of judicial decisions is far from the norm. This can be gauged by the massive number of cases that continued to be filed under Section 66A of the Information Technology Act, 2000 which was declared unconstitutional six years ago. Despite being stricken down as an invalid law, an ignorant law enforcement machinery continued to abuse this provision to harass citizens. Ignorance of the law is no excuse for this brazen disregard and the agencies of the state apparatus must be held accountable for flouting the verdict of the Supreme Court. The fact that so many innocent citizens have been hauled up under a non-existent law has “shocked” the judiciary. The petition filed by the People’s Union for Civil Liberties brought this glaring issue to the forefront of the Supreme Court’s attention. The SC bench expressed its amazement that an entire legal apparatus – consisting of interior home ministries, the police, public prosecutors, prison authorities, lower courts and judges – should fail to comply with a verdict given in 2015. It must be probed whether the police machinery remained ignorant of the verdict or simply found the “dead” law to be an expedient way to haul up dissenters. Neither of the instances absolves the police machinery for its brazen insubordination to the apex court’s declaration. The law enforcement agencies have relied on an unconstitutional principle of parliamentary suzerainty to disregard the verdict in the Shreya Singhal case.
The Ministry of Home Affairs (MHA) has now directed states and union territories (UTs) to instruct all police stations under their jurisdiction to not register any case under the repealed Section 66A of the Information Technology Act, 2000 and drop any cases previously registered. The MHA notification has also pressed the need to sensitize law enforcement agencies to comply with the verdict laid down in the Shreya Singhal case in 2015. These are all commendable decisions but they must be accompanied with a sincere attempt to reverse the injustice caused by this perversion. The issue is a necessary reminder that the judiciary must not simply rest its laurels after delivering landmark judgements but must be cognizant of its effective implementation.
The case highlights the high-handedness of state agencies but is also a stark reminder of the lacuna that exists between judicial verdicts and its effective implementation. It demonstrates how the loudest of judicial declarations would be rendered meaningless without an effective mechanism for compliance. There is a pressing need to sensitize police officials and the wider state machinery of judicial developments. The police must not be allowed to exploit arcane and obsolete legal statutes to harass citizens. Oftentimes the people most abused by such illegal tactics belong to the underprivileged and discriminated sections of society with little to no idea of the minutiae of the law. The rule of law is severely discredited when it is seen not as a custodian of civil liberties but a tool for oppression. The case is an opportunity for the judicial system to reflect on the need to transform the legal landscape and bring it closer to the public it serves.
WAY FORWARD
The MHA notification issued to states and UTs highlighted the important need to sensitize law enforcement officials to comply with the orders issued by the Supreme Court. The importance of this function cannot be overstated. The judiciary has been vested with the responsibility to dispense justice. The Supreme Court and lower courts are the custodians of the Constitution and a bulwark against an aggressive state. Compliance with the judgements laid down by the judiciary is a prerequisite for the functioning of any democratic society. Any impact of judicial decisions can be gauged only when laws laid down by courts are properly complied with. This is not the symptom of an overactive judiciary. In fact, this is absolutely consistent with the role envisaged for the judiciary by the framers of the Constitution. The law does not exist in a vacuum; it has a demonstrable impact on the very lives of the citizens. The gulf that exists between judicial declarations and the everyday lives of ordinary Indians must be bridged.
In this regard, the first step must be to disabuse the law enforcement agencies of their seemingly unbridled power. The police machinery exists to serve the people and redress issues that might affect law and order. It is not a license to harass citizens and levy charges for any form of feudal protection. The purpose of the police is to make sure that members of society act within the constraints imposed by law. This makes it essential that law enforcement agencies remain updated with the current developments in law and do not follow a principle of absolute parliamentary suzerainty. The flouting of the SC verdict in the Shreya Singhal case points to a deeper malaise pervading the justice system. While law enforcement officials must be hauled up for their blatant transgression, it is important to recognise the multitude of factors at work here. Mere bureaucratic arrogance does not explain the avalanche of proceedings instituted under Section 66A since 2015. Political pressures and promises of protection offered by unscrupulous political masters are also a driving force behind bureaucratic corruption. Section 66A is a useful tool for politicians to crush any dissent raised against them by a vigilant public. This too was recognised by the apex court in the Shreya Singhal judgement. When critiquing the agencies of state for their brazen violation, it is important not to simply absolve the state of any wrongdoing either.
Law enforcement agencies must be sensitized of their duties and responsibilities. Their legal knowledge must be on par with an experienced advocate to spare innocent citizens the trauma of going through a lengthy and costly legal battle. This is a short-term solution to the vexing issue of implementing judicial decisions. A long run solution would entail producing a better informed and legally literate citizenry. Citizens must be legally empowered to make sure their rights are not trampled on by an arrogant state apparatus.
Law must not remain confined to an esoteric circle of judges, advocates, legal scholars and academics. It must be accessible by the common man. In the case of Ajit Mohan vs. Legislative Assembly[vii], the Supreme Court commented that judgements should be crisp, clear and crisp so that it is easily understood by everybody. Brevity must be an essential quality of the verdicts laid down by the courts, both for easy comprehension by lower courts and better understanding by the common man. It is important to realize that judgements laid down with an “ivory tower” mindset may not reflect the facts of the ground and be satisfactory for the common individual. There is a wide gap between judicial pronouncements and the actual reality faced by millions of Indians. For the last six years, the police invoked a constitutionally “dead” law to harass citizens and make a mockery of the judicial system. Each and every individual hauled up under this obsolete law is owed an apology by the state. Though the MHA has now acted with alacrity and issued notices to states and UTs, it is dismal that such perversion of law occurs in the first place. It must also be noticed that the sorry state of affairs where judicial orders are brazenly disobeyed cannot be permitted in a functioning society. It goes against every tenet of good governance and constitutional integrity.
[i] ANDREW KEEN, THE CULT OF THE AMATEUR: HOW TODAY’S INTERNET IS KILLING OUR CULTURE (Doubleday 2007).
[ii] Dr. Upendra Baxi, A Sudden Flood of Mutiny? Aug 2nd INDIA LEGAL. 20-22 (2021).
[iii] Shreya Singhal vs. Union of India (AIR 2015 SC 1523).
[iv] Baxi, supra note ii
[v] Express News Service, Section 66A: 21 petitions that changed the system, THE INDIAN EXPRESS (July 14, 2021 7:40:35 pm), https://indianexpress.com/article/india/india-others/sec-66a-21-individuals-who-changed-the-system-2325682/.
[vi] Supra note iii
[vii] Ajit Mohan vs Legislative Assembly, National Capital Territory of Delhi (8 July, 2021)
Jurisdictio Omnis 