Section 66A declared unconstitutional, free speech wins:

This post has been written by Nimisha Gupta, law student of University School of Law and Legal Studies, New Delhi

The Hon’ble Supreme Court, in its recent judgment Shreya Singhal v. Union of India (Writ Petition (Cri.) No. 167 of 2012), struck down Section 66A of the IT Act, 2000 as unconstitutional. The provision was repealed by the court on 24th March, 2015. The bench comprising of Justice J. Chelameswar and Justice Rohinton F. Nariman said that “It is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right”.

While there can be no denial that Section 66A in its language was unconstitutional, it is necessary that we analyze the issue of whether we need an alternative provision which tries to balance both the freedom of speech and expression and the right of a person to live with dignity and respect.

Internet as argued by the Additional Solicitor General in the judgment is a complex and a vast arena where boundaries lose their relevance. Information in such a place spreads rapidly. Bringing down on one provision of law doesn’t mean that we cant improve upon it by making amendments to it. There certainly is a need to bring an alternate to Section 66A, which is different in scope, language, application and implementation.

 Protecting the underlying Objective of Section 66A:

It is agreed that Section 66A was whimsical and arbitrary, but in its essence it strived to protect the interest of the person against whom any sort of offensive messages is posted on the Internet. This essence needs to be reignovarated since freedom of speech and expression do not give an unbridled right to a person to assail the reputation of any other person.

Article 21 of the Constitution provides to every citizen, the fundamental right to live their life with dignity. This fundamental right cannot be compromised on the pretext of free speech and expression. There are reasonable restrictions imposed on fundamental right to free speech and expression.

The said judgment talks about the concept of ‘market places of ideas’ as given for the first time by Justice Holmes in his famous dissenting view in Abrams v. United States, which propounds that even bad ideas should be allowed to be published, as eventually good ideas will displace bad ideas.

This idea fails to consider that although a bad idea can be replaced by more rational ones, the harm caused by those bad ideas, even though for a limited time period can be dangerous and harmful. A single troll on social media targeting one individual can harm his or her dignity for a life time.

An alternate provision to Section 66A, which is more precise in its application and language, can ensure that such bad ideas, which are dangerous to one’s dignity, are not published in the first place. Section 66A didn’t talk about harm to reputation, but in its conceptual implementation included some of the themes related to it. The alternate section should be precise in this aspect and should not fail to mention the restriction being imposed on one.

 The Reasonableness of the Restrictions:

 The Apex Court discussed the concept of reasonable restriction to great extent in the above said judgment. Fundamental rights cannot be dissociated from the change in the ground level realities. If the relationship between two gets tenuous then apart from an abstract level, these fundamental rights will hold no relevance.

In the present scenario, Internet is providing everyone the ability to disseminate information at a speed no one could have imagined. Our Constitution framers also couldn’t have thought of this possibility when they were debating on the various provisions in the constituent assembly debates.

In this context, the judgment by restricting itself to restrictions mentioned in Article 19(2) only, could have overlooked the fact that Article 21 can be established as a legitimate restriction to freedom of speech and expression.

In India, right to privacy has been upheld as implicit within the purview of Article 21 of the constitution. In Rajgopal vs. State of Tamil Nadu, the apex court held that right to privacy is implicit in right to life and liberty under Article 21 and includes right to be let alone.

In the present age of free and unrestricted information being disseminated in the Internet foray, right to privacy has been relegated to the periphery. Reasonable restrictions on freedom of speech and expression have to encompass within its fold others right to privacy. Sadly under the garb of anonymity on the Internet platform, this quintessential right is assailed over and over again. Trolls, memes, images and videos of certain individuals play with their right to privacy. An alternate section, which is more specific and streamlined, has to be implemented to check that someone’s privacy is not dented without any reason.

The Application of IPC:

The need for preparing an alternative to Section 66A also arises from another pivotal fact that in absence of a provision for person being punished for posting defamatory information on internet, the chances of Section 499 and Section 500 of IPC being invoked increases. It is fully agreed that Section 66A was very harsh in imposing a punishment, which included imprisonment extendable to three years, but Section 500 of the IPC also chalks out a punishment on similar lines, which can be a deterrent for people publishing something on the Internet.

The Move Forward:

In the above said analysis, the conclusion is clear that even though a provision is unconstitutional, but the themes and concepts involved in it still need to be taken care of. For making rights related to speech and expression more relevant to the current context, the need is to balance it out with other equivalent and opposite rights.

As held in the case of Ram Singh vs. State of Delhi, the fundamental rights are not absolute but qualified, although the limitations on them are secondary and not primary. This balancing act hence is critical and will therefore involve correct application of legislative mind.

In this fast changing world and with new technological developments, specific provisions governing a specific field has become an urgent need and the same applies in this case of finding an appropriate alternate to Section 66A, which is devoid of arbitrariness, vagueness and linguistic fallacies.

Legal Parley has previously critically analysed Internet Governance and Free Speech on the Internet, HERE.

Picture Courtesy: Pixabay

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