The Supreme Court had struck down the provision in 2015, ruling that it did not pose a reasonable restriction on free speech.
‘Each State party shall adopt such legislative and other measures as are necessary to establish as an offence under its domestic law, if any person sends, by means of a computer resource or a communication device (..) any information that is grossly offensive or has menacing character,’ read India’s recent submissions to the United Nations Ad Hoc Committee elaborating an international convention to combat cybercrime.
Cybercrimes cost the global economy hundreds of billions of dollars every year, and India regularly suffers from a wide variety of such crimes too. In this light, ‘an international convention preventing cybercrime could serve as a legal basis for preventing them,’ notes Salman Waris, Managing Partner at TechLegis Advocates and Solicitors, a specialist technology law firm based out of New Delhi. The Committee, established in December 2019, held its first session in March 2022 in Vienna, Austria. The second session, where India presented these comments, is underway in Vienna and centres around states’ perspectives on criminal procedure and law enforcement in cybercrime.
However, upon hearing the above snippet of India’s proposal, Economic Times reported that Nigeria, Luxembourg, Georgia, El Salvador, the European Union, and the United Kingdom opposed it—with some specifically noting that it would impact freedom of speech in their countries. In 2015, the Supreme Court of India echoed similar sentiments on Section 66A of the Information Technology (Amendment) Act, 2008—the predecessor to and an identical replica of this provision submitted to the UN Committee. In Shreya Singhal v Union of India, the Court unambiguously struck down Section 66A—ruling that it did not count as a reasonable restriction on free speech. Pending cases under the Act would be dismissed, and no new cases would be filed under it.
Given the precedent of Shreya Singhal, ‘it is unusual to see the Indian government submit a struck down provision such as this at an international forum,’ says Krishnesh Bapat, Associate Litigation Counsel at the Internet Freedom Foundation. ‘This marks a departure from its stance on Section 66A back home.’
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Why Was Section 66A of the IT Act Controversial?
Passed in under thirty minutes at the Lok Sabha, the Information Technology (Amendment) Act, 2008, sought to counter a new array of Internet crimes. These include identity theft, cybercrime, and child pornography. Section 66A—which criminalised ‘grossly offensive’ messages transmitted through a computer or communication service—was purportedly inserted into the Act to address cyber crimes against women. The provision also granted wide powers to law enforcement agencies to make arrests for ambiguously defined ‘grossly offensive’ speech online.
This extensive power granted to government agencies resulted in the rampant misuse of Section 66A—often in cases that had very little to do with women’s rights. ‘The establishment favoured the provision because any speech it doesn’t agree with can be pigeonholed under Section 66A,’ explains Mr. Bapat. ‘This resulted in curbing speech that was not offensive under the Indian Penal Code, 1860, [IPC] or the Information Technology Act, 2000.’ Mr. Waris adds, ‘similar provisions are often used by authoritarian regimes.’
Most famously, in November 2012, a 21-year-old woman from Mumbai was arrested for a Facebook post critiquing the shutdown of Mumbai post the death of Shiv Sena leader Bal Thackeray. Her friend was arrested for liking it. After apologising for her post, both were released on bail. Post their release, 21-year-old law student Shreya Singhal subsequently filed a Public Interest Litigation at the Supreme Court, challenging the constitutionality of a provision that allegedly violated Articles 14, 19(1)(a), and 21 of the Constitution of India, 1950. In 2015, the Court delivered its verdict in Shreya Singhal—striking down the ‘unconstitutionally vague’ provision that failed to describe the limits of government powers. ‘Governments come and governments go, the law persists (..) 66A is invalid and it cannot be saved even if the government says it won’t abuse the law,’ the Court stated.
Why Resurrect the Provision on the International Stage?
‘For the provision to be struck down was not in the best interests of the government,’ surmises Mr. Waris. ‘The present effort to reintroduce it at the international level means that if this becomes part of an international treaty [and India ratifies it], it may give the government an excuse to reintroduce the law nationally on the pretext of meeting international treaty obligations.’
However, whether this can transpire remains to be seen. ‘Parliament would have to draft a law exactly identical to the provision—this is because India’s submissions to the UN make no attempt to address the infirmities of Section 66A raised in Shreya Singhal,’ argues Mr. Bapat. ‘Once such a law is introduced, it is both immediately challenged by the precedent set in the 2015 Judgment and is also non-compliant with Part 3 of the Constitution of India [which describes the Fundamental Rights of Indian citizens]. So, the intent of such a move remains unclear.’
Breathing Life into A Dead Provision
Nevertheless, even without a new Act, Section 66A enjoys much longevity in India. The T.K. Viswanathan Committee—led by the former Secretary General of the Lok Sabha—was instituted in 2015 in the aftermath of Shreya Singhal to clarify the ambiguities of Section 66A. Its recommendations, some critics argue, only made the law stricter—while still defining ‘grossly offensive’ speech in expansive terms. In 2018, the Ministry of Home Affairs (MHA) directed the Law Commission of India to draft a law on ‘online hate speech’ based on the Committee’s recommendations. Politician Sharad Pawar also suggested the re-introduction of the provision in 2018—somewhat ironically in exchange for repealing Section 124A of the IPC criminalising sedition.
Most concerning is the fact that FIRs are still filed under this dead provision—with the People’s Union for Civil Liberties approaching the Supreme Court in 2019 to ensure compliance with the 2015 judgment. Despite the Court’s repeated dismay at this state of affairs, whether in 2019 or as recently as last year, the phenomenon continues—with at least 1307 cases filed under the provision since Shreya Singhal was delivered. In July 2021, the Ministry of Home Affairs directed police departments across states to strictly comply with the Court’s ruling in Shreya Singhal, making the recent sighting of 66A at the UN all the more puzzling.
Looking Ahead For A New Way To Counter Hate Speech
In 2014, representing the newly elected Union government, then Additional Solicitor General Tushar Mehta assured the Supreme Court that it was ‘willing to take all preemptive steps to negate the chilling effect that Section 66A may have on an individual’s right to speech and expression.’ A year earlier, then Chief Minister of Gujarat and current Prime Minister Narendra Modi changed his Twitter display picture to a black tile, protesting the blocking of Twitter accounts by the ruling UPA government.
India’s moves at the UN of late are a far cry from these sentiments. In the interim, inflammatory speech online carries on, often unabated. ‘[If the concern is truly about crimes against women] The only way the phenomenon can be countered legislatively in India, in line with the spirit of the SC’s 2015 Judgment, is by passing and enforcing a specific law on online crimes against women,’ argues Mr. Faris. Mr. Bapat adds that while the provisions of the IPC and IT Rules have their own faults—they are expansive enough to counter offensive speech online. ‘A new law is needed that protects the interests of intermediary platforms [where such speech is made] but also ensures that no Indian’s Fundamental Rights are harmed,’ he says. ‘In any case, you don’t need a provision as broad as Section 66A to counter offensive speech online.’
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