A two judge bench of the Supreme Court, comprising of Justice Chelameswar and Bobde, hearing multiple cases challenging sections linked to the IT Act, observed yesterday that Section 66A of the Information Technology Act (download) – provisions related to which had been called vague, unconstitutional, and beyond the ambit of Article 19(2) of the Constitution of India which provides reasonable restrictions on free speech only chills you from saying something offensive (on the Internet). The court hasn’t finished hearing the arguments, and the comments made don’t necessarily have any bearing on the final judgment.

Following arguments made Sajan Poovayya, representing Rajya Sabha MP Rajeev Chandrasekhar, which suggested that the provisions are such that even following community standards will have a chilling effect on free speech, since every community has different standards and (almost) all communities are present on the Internet, the vagueness of the provisions will have a chilling effect on Free Speech (and lead to self censorship), Justice Bobde observed that “this law chills you from saying something offensive. You are not talking to your community, you are talking to the world community. Someone talking to the United Nations will have different approach to (saying something in) a drawing room. This is a vexed issue. In all the arguments, the injunction to be careful is being seen as an injunction to be quiet. Free speech is not the right to say what you want. If a law requires a person to be careful, it is not violative of free speech.” Referencing some terms in the IT Act, Justice Bobde added that “‘menacing’ is instilling fear without threatening. I don’t see what is vague about menacing. Everybody knows what offensive is. There are things that are offensive to everybody: if somebody uses a word here (in the courtroom) everybody can be offended.”

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Over the past two days, several petitioners had repeatedly pointed towards the issue that the vaguely worded provisions of Section 66A lent themselves to arbitrary interpretation, and opened up users posting comments online and sending information via email, to potentially a jail term of up to three years, as defined in the IT Act. They argued that the provisions went beyond the limited provisions of Article 19(2) of the Constitution of India.

Earlier in the day, Justice Bobde also observed that Section 66A makes mere sending an offense, whether it is received or not, and even addressed to anyone. He asked the Government to explain whether . If you don’t have ‘mens rea’ (an intention), should it be an offense? Suppose if it is a copy-paste, and someone presses sent, is the act of sending an offense? Is mens rea necessary?”…”Is it your case that this is a statutory offense and doesn’t require mens rea?” To this, Poovayya pointed that there is no standard, except that of the complainant and the recipient, which led to him explaining how something posted online will always offend someone in some community.

Povvayya had also pointed out that provisions of the IT Act convert a 2 year imprisonable offense under the Indian Penal Code, into a 3 year offense. The Government has repeatedly pointed out that Section 66A(c) largely relates to spam – unsolicited and persistent email sent from a single source to many – and phishing.

While the Government has conceded that there has been misuse of Section 66A, and both the Palghar and the recent HudHud case were mentioned, The Court is examining the statutory infirmity of the Section, and not necessarily its poor implementation. The quote had asked the Government to explain why the IT Act was amended in a manner that an officer of an inspector level could arrest citizens under this act, and why this level was downgraded from a Deputy SP to an inspector level between two revisions of the IT Act. The petitioner also argued that measures such as the Government issuing guidelines that such arrests will now need the approval of an Inspector General of Police in metro cities, and DCP level in rural areas, does not address a potentially unconstitutional nature of Section 66A itself, which the court acknowledged. The court had asked the petitioner to focus on pointing out the infirmity in the law, which it is examining, and not as much the infirmity in its implementation.

The government will argue its case after all petitioners have spoken. The cases being argued and the provisions being challenged, in this batch:

1. Shreya Singhal v. Union of India W.P Cr. 167/2012
challenging: Information Technology Act, 2000 Section 66A

2. Common Cause v. Union of India W.P. (C) 23/2013
challenging: Information Technology Act, 2000 Section 66A, 69A and 80

3. Peoples Union of Civil Liberties v Union of India W.P. Cr. 199/2013
challenging: Information Technology Act, 2000 Section 66A; Intermediary Rules, 2011 – Rules 3(2), 3 (3), 3 (4) and 3(7); Blocking Rules, 2009 Rule 5, 8(1), 11. 

4. Rajeev Chandrashekhar v. Union of India W.P. (C) 21/2013
challenging: Information Technology Act, 2000 Section 66A; Intermediary Rules, 2011 Rules 3(2), 3 (3), 3 (4) and 3(7)

5. Anoop M.K. v. UOI W.P. Cr. 196/2014
challenging: Information Technology Act, 2000 Section 66A, 69A, 80; Kerala Police Act, 2011 Section 118(d)

6. Mouthshut.com (India) Pvt. Ltd. v Union of India W.P. (C) 217/2013
challenging: Information Technology Act, 2000 Section 66A; Intermediary Rules, 2011

7. Internet and Mobile Association of India V. Union Of India (W.P.(C) NO. 758/2014)
challenging: Information Technology Act, 2000 Section 79(3)(b); Intermediary Rules, 2011 Rules 3(2) (b), 3 (4) and 3(7)

8. Dilip Kumar Tulsidas v Union of India W.P. (C) 97/2013
Has sought a direction to the government to frame an appropriate regulatory framework of Rules, regulations and guidelines for effective investigation of cyber crimes.

9. Manoj Oswal vs Union of India W.P. Cr 225/2013
challenging: Information Technology Act, 2000 Section 66A; Indian Penal Code, 1860, Section 499, 500

10. Taslima Nasrin V. State of UP W.P. Cr. 222/2013
challenging: Information Technology Act, 2000 Section 66A; Indian Penal Code, 1860 Section 295A.