Absence of 66A - A Paradise for Hate Speeches

In Shreya Singhal Case, A bench constituting Chalmeshwar and Rohinton Nariman JJ., delivered the judgment declaring Section 66A of Information technology Act 2000 ( Amended in 2008) as unconstitutional. It is one of the landmark judgments on Right to speech and expressions, certainly, a cross over since Benett Coleman case (AIR 1973 SC 106) which redefined the freedom of press. The Apex court has already established the freedom of press in many cases and especially after the notorious internal emergency period. 

     Some girls who ‘liked’ a post condemning the violence orchestrated on the occasion of the death of Bal Thackrey were booked under section 66A of Information technology Act. In Persuant to lodging of FIR they were arrested. Certainly this kind of situation exhibited the ‘draconian’ shade of the legislation. Shreya Singhal, a Delhi based Law student filed a writ petition before the Apex court challenging the constitutionality of Section 66A of information technology Act. Afterward many writ petitions has been filed challenging the above said provision of law alongside challenging section 69A of Information Technology Act. A similar provision contained in Kerala Police Act 2011 was also under the scanner whereas the provision of Kerala police Act, Section 118(d),had wider purview than section 66A of Information Technology Act. 

       The Aftermath of the verdict has turned into a paradise for hate speeches in Social media. Each and every day we come across many postings in twitter and facebook. Some persons (Many of the social media accounts are fake) even making propaganda against particular community (Either it is Muslims or Brahmins) akin to Nazis Propaganda of Jews. Moreover some political strategist companies are using Twitter as a play ground for digital war in political sphere in the guise of right to freedom of speech and expression. The reality of the absence of Section 66A is a paradise for these hate speeches. Dehors all these issues

But whether this ruling is a landmark or Vacoule in jurisprudence?

Section 66A as it was: 

      As per section 66A, sending offensive message through communication device etc., is an offence subjected to the ingredients of the same.

The ingredients of the section was 

For section 66A (1)

• An ‘information’
• Shall be grossly offensive or has menacing character.

For Section 66A (2)

• Sending Any information 
• Knowing It as false
• Intention of causing annoyance and harm and so on
• Through communication device.

For Section 66A (3)

• An email
• Causing annoyance or inconvenience to the recipient.

      It is very clear that the section deals about “messaging” not “publishing” unlike section 67, 67A, 67B and so on. Apart from subsection 3 as stated above, the other sub sections are lacking clarity that the provision speaks about “Messaging” or “publishing”. For instance, Posting a thing in Facebook is an act of publishing whereas sending messages in Facebook messenger is “messaging” Dehors group messages. Of course the title of the section clearly says that the provision is intending only to punish the person who is sending messages whereas the subsection 3 particularly mentions email.

     The thing is whether the peer to peer transaction, is suseptible for constitutional scrutiny? The Honourable Apex court ought to have considered the title of the section for finding the intent of the legislation and the target person against whom the section was crafted. Right to speech and expression as discussed in Shreya Singhal Judgement is totally at par with the publishing rather than messaging. By specifically stating he word “publishing” in certain section like section 67 of the Act, it is clear that the provision struck down was only intended to punish the offensive information messaged through a communication device. 

      The patent ambiguity of the section and it’s lacking ingredient to show the difference between messaging and publishing decided its fate. 

‘ Speech and Expression ‘ as enumerated in Article 19(1) of the constitution of India is very vast. But the criteria to decide the context whether such expression is coming under the purview of Article 19(2) is different.

• To whom that expression is made.
• Who is the target audience.
• The intention behind that objectionable expression.

     In my most humble view,a sender of a message (one – one) which is containing anything offensive and abusive sent through communication device could not be prosecuted since section 66A has been declared as Unconstitutional. Certainly the ruling of the Apex court has created a paradise for many cyber criminals whose act falls outside the purview of section 66B to 66F, 67, 67A, 67B and so on. 

      There is no dispute about the sanctity and importance of Right to Freedom of speech  and expression and ensuring the same in cyberscape as like as in the press. It is one of the basic fundamental of constitutional democracy in India. But at the same time it is also the fundamental right of a person to have reputation as enshrined under Article 21 of the constitution of India. The ruling in Shreya Singhal has definitely paved a clean way to the cyber criminals and crooks to tarnish a person’s reputation by virtue of eliminating the penal provision. Any person can post offensive and abusive comments against a person or a company in the guise of Right to Speech and expression in the cyberscape. It is true that Section 66A was misused in any places for posting some comments in Facebook or Twitter which Perse comes under the ambit of Hosting or publishing but they are not messages. It is needless to declare the provision merely on the ground of misuse. Such misuse of the provision could even be curbed by issuing directions. 

     It is a biggest Vacoule created over the cyber jurisprudence and it is the imminent need of the moment that the Apex court shall review the ruling in Shreya Singhal case in the touchstone of difference between the act of messaging and publishing an information in the cyberscape.

-BSM