Supreme Court hearing on IT Act petitions

This post attempts to summarise the proceedings before the Apex Court where all the petitions challenging various provisions of the Information Technology Act, 2000 and Rules thereunder are being heard(list of all the petitions here). The petitions were initially heard by a bench of Justice J.Chelameswar and Justice S.A. Bobde and are now listed before Justice J.Chelameswar and Justice Rohinton Fali Nariman.

The Information Technology Act, 2000 as amended by the Information Technology (Amendment) Act of 2008 has turned out to be one of the most controversial pieces of legislation to have ever been enacted. With the criminalization of sending ‘annoying, disparaging, inconvenient messages through any electronic device’ under the amendment act, India has come in the limelight for all the wrong reasons. The IT Act provisions have had a severe chilling effect on the free speech and expression for Internet users. Where in case Section 66A fails in silencing free speech, the guidelines under Section 79, namely the “The Information Technology (Intermediaries Guidelines) Rules 2011” force online service providers to censor content that may be “annoying, disparaging, hateful etc.” Thus, the authorities are fully equipped to silence free speech one way or another. As a consequence about ten petitions have been filed before the Supreme Court praying for repeal of the unconstitutional provisions. The following paragraphs take you through the proceedings of the Hon’ble Supreme Court as they happened when the petitions were taken up for a final hearing.

Shreya Singhal v Union of India (Writ Petition (Criminal) No. 167/2012)

This was the first petition that called for striking down Section 66 A as unconstitutional. Consequent to the arrest of two girls in Mumbai over a Facebook post, Shreya Singhal, a law student approached the Supreme Court stating that Section 66A violates the constitution and is liable to be struck down. Senior Counsel Soli Sorabjee presented the arguments on her behalf.

1. In his opening arguments Counsel Sorabjee read the Preamble of the IT Act before the bench while stating that any law must impose restrictions only to the extent it is within the ambit of Article 19(2) of the Constitution. While citing the Sakal Papers Case (1962 SCR (3) 842), he submitted that freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved.

2. He said that a law can be held to be unreasonable if it is vague and with specific reference to 66A he said that the provision suffers with the vice of vagueness and is liable to be termed as unconstitutional. He said that Section 66A of the IT act penalizes free speech when it causes annoyance, and the term annoyance could hold different meanings for different people. He firmly objected to the use of vague and ambiguous terms in the 66A provision.

3. The Bench seemed to agree with Counsel Sorabjee’s contentions and pointed out that the illegality of any content/message should be determined by a competent court. The Bench further inquired from Counsel Sorabjee whether any provision existed under the Indian Penal Code(IPC) that punishes for sending messages, which led Sorabjee to state that there exists several provisions under the IPC which not only provide for such an offense but also define the situations where a liability might arise, citing section 153A of the IPC in particular. The Bench found this provision to be different in intention and asked for a further examination of the IPC provisions relating to sending messages. The Bench however observed that 66A does not give any specific guidance on when to invoke it, unlike the provisions in the IPC. The IPC uses specific words and gives specific illustrations for the offenses but that does not appear to be the case with Section 66A.

4. The Bench seemed to be inquisitive to know as to why the need for this provision was felt in the first place. The Bench said “it appeared that nobody had to even say anything hateful or meaning ill will… annoyance of someone could be used to invoke it.” This observation of the court came as Additional Solicitor General Tushar Mehta submitted that the abuse of power in certain cases was evident and that the Centre did not seek to justify the incidents where whimsical arrests were made. He said in most incidents cited in the petitions, the power was abused and actions had been taken against the erring police officers. The Court retorted to this by stating that “if there is abuse and the abuse is so egregious, even in some cases, there is definitely as issue to be heard and decided regarding the validity of such a provision”.

Common Cause (A regd. Society) and Anr. v Union of India (Writ Petition (Civil) 21 / 2013)

Common Cause’s petition was heard next with Advocate Prashant Bhushan presenting arguments on their behalf. This petition challenges several provisions of the IT Act including sections 66A, 69 and 80 as being violative of articles 14, 19 and 21 of the Constitution.

1. In his opening arguments Advocate Bhushan stated before the Court that the degree of proportionality between the punishment and the act sought to be punished is unreasonable and that 66A creates a prior restraint on free speech. He compared punishment for defamation under the IPC and punishment for defamatory messages under 66A and said that the procedure of arrest for the same offense was different under these provisions. Like Counsel Sorabjee, he also emphasized on the vagueness of the provision under Section 66A and said that criminal law ought not be vague.

2. Advocate Bhushan stated before the Court that the requirement that crimes must be defined with appropriate definiteness is regarded as a fundamental concept in criminal law and must now be regarded as a pervading theme of our Constitution.

3. Further with respect to Section 80 of the IT Act, he said that the same is unreasonable as it enables the police to carry out search and seizure on apprehension of an offense, for eg. an offense under section 66A. In retort, Solicitor General Tushar Mehta pointed out that under Section 66A the conditions of “persistent and false” must be satisfied in order to constitute annoyance. However, to this Advocate Bhushan replied that any restriction on free speech should be judged carefully and should fall within the ambit of Article 19(2) in order to be considered reasonable. He said that nobody should be sent to jail for causing “annoyance” to another. He further said that ‘gag orders’ on the basis of section 66A should not be made permissible.

4. Section 69A that provides for blocking for public access of any information through any computer resource has also been challenged as being unconstitutional in Common Cause’s petition. Advocate Prashant Bhushan argued that such safeguards as the one under 69A should only exist for preventing communal hatred or incitement of violence.

People’s Union for Civil Liberties v Union of India (Writ Petition (Criminal) 199/2013)

The third of the tagged petitions was filed by People’s Union for Civil Liberties and it challenges Section 66A of the IT Act, as well as Rules framed under the Act with respect to intermediary liability and blocking of web pages. Senior Counel Sanjay Parikh, appeared on PUCL’s behalf.

1. Counsel Parikh commenced his arguments by bringing to the Court’s notice the recommendations of the Standing Committee with respect to the Information Technology Bill 2006, wherein the Committee had on a close scrutiny of Section 66A(b) denied that the provision efficiently tackled the problem of spam, as had been stated by the DIT. The Committee further desired to know from DIT as to how the menace of spam could be appropriately dealt with.

2. Counsel Parikh reiterated before the Court that Section 66A in its current form fails to provide for any protection from spam, as had been the intention of the legislature. He further stated that section 66A creates stand alone offenses, to that extent communication without intent is also brought under its ambit.

3. With specific regard to sub-sections (a) and (c) of Section 66A, Counsel Parikh stated before the Court that the “offensive messages” need not even be via e-mail to create an offense. He further pointed the Bench towards Sections 66E and 66F, both penal offenses and where intention is a per-requisite. The Court then clarified from Parikh whether mens rea was ever made a part of Section 66A at all.

4. He then moved onto the vagueness of the provision and stated that unless a statue defines terms such as ‘inconvenient’ it is untenable. The vagueness of Section 66A may silence speakers and 66A will be looked at with a far greater benchmark, Counsel Parikh told the Court.

Anoop M.K. vs Union of India and Ors. (Writ Petition (Criminal) 196/ 2014)

This petition has been filed challenging Sections 66A, 69A and 80 of the Information Technology Act, as well as Section 118(d) of the Kerala Police Act. Advocate Gopal Sankarnarayan presented his arguments before the Court on the 3rd day of the proceedings.

Section 66A

1. It was stated that Information Technology Act 2000 has been drafted without competent information with respect to the technology involved. The restriction imposed on speech under Section 66A is not traceable to the reasonable restrictions under Article 19(2), thus it falls foul of Article 19(1)(a).

2. While the validity of the legislation itself was put to question, the onus to show the basis of the Section 66A was put on the government by Advocate Sankarnarayan who said that only the State Government can enact legislation to maintain public order. He said “Public Order is in any case an exclusive State subject being Entry I, List II Schedule VII. If the provisions is sought to be justified on this ground, then it is void for competence.”

3. Emphasizing on the unreasonable restrictions that section 66A imposes on free speech, Sankarnarayan said that the provision is subjective, undefined and has a low threshold. He further stated the punishment imposed is disproportionate to the act sought to be punished and if the same provisions were applied to the non-online media, the consequences would be egregious.

4. Section 66A was said to be violative of Article 14 in as much as it is over-broad and endows uncanalised powers of determination on the authorized police officer. He said that the impugned provisions would lead to creation of classes. Further the validity of 66A against Article 21 was also put to question stating that it creates a penal offense without the ingredients of mens rea, and fails to make any distinction between those who maliciously offend and those who innocently do so.

Section 69A

1. The provision not only impinges the author’s right to speech and expression but also takes away the right to information of users under Article 19(1)(a), when access is taken away. More so in the case in the context of foreign websites, owners/authors of such content may not be particularly concerned about the block. Further, Section 69A endows uncanalized powers on the Central Government which violates Article 14.

2. There is complete departure from the principles of natural justice as the blocking directions follow immediately upon the subjective satisfaction of the officer without any notice or advertence to the author/uploader of the content.

3. As far as the restrictions imposed under section 69A, Sankarnarayan submitted that the provision merely reproduces the grounds listed under Article 19(2). While reasonable restrictions under Article 19(2) are the basis of justifying law that infringes free speech, the same cannot also be a parameter for determining the grounds for blocking without some objective parameters or guidelines that clarify exactly the scope of security of the state, public order, friendly relations with states etc.

4. He further said that a separate argument under Article 19(1)(g) may be canvassed by those who run online trade and businesses.

Section 80

1. Sankarnarayan submitted before the court that the power of arrest and seizure under Section 80 is gratuitously endowed without any safeguards as is available in the Code of Criminal Procedure 1973.

2. The procedure for arrest, seizure under Section 80 is not just, fair and reasonable and hence violates Article 21. He further stated that a legislation which arbitrarily restrains a right cannot be said to be reasonable.

   Section 118(d) Kerala Police Act

1. At the outset Gopal Sankarnarayan submitted before the court that the Kerala legislature lacks the legislative competence to enact Section 118(d) as it is covered by Entries 31 and 93 of List.

2. While pointing out the similarities between Section 66A and Section 118(d) He further stated that the provision creates a penal offense without the ingredients of mens rea, thereby breaching Articles 19 and 21 and it must either be read down or the offending portions be severed.

   Internet and Mobile Association of India & Anr. v Union of India & Anr. (Writ Petition (Civil) 758/2014)

   This petition challenges Section 79(3)(b) of the Information Technology Act 2000, and sub-rules (2)(b), 4 and 7 of Rule 3 of the Information Technology(Intermediary Guidelines) 2011. Senior Counsel K.K. Venugopal presented his arguments before the Court on the 4th day of the proceedings.

   Section 79(3)(b)

1. The peremptory obligation on intermediaries under Section 79(3)(b) to disable/take down content is patently ultra vires Articles 14 and 19.

2. Section 79(3)(b) fails to justify the summary removal of material based merely on the notice of a third party or of the Government of its agency, nor is there any logic behind making the applicability of exemption under Section 79(1) contingent on removal of material under Section 79(3)(b).

3. The provision does not afford an intermediary the opportunity to be heard when notified by the Government or its agency, nor does it allow the intermediary to exercise its rights and contentions under the law to retain the material when a private party seeks its removal, including where the take down request is based on a bald assertion or on sufficient facts or fails to make out any legal ground justifying the removal of content identified to the intermediary.

4. The provision lacks any judicial application of mind by a court or a tribunal to assess the merits of a take down notice received under Section 79(3)(b). Further there is no framework of appeal against notice received from a private party or government. The provision leaves an intermediary with the only option of removing the material, failing which it loses the ability to invoke the safe harbor under Section 79(1).

   Information Technology (Intermediaries Guidelines) 2011

1. Sub-Rules 2(b), (4) and 7 of Rule 3 of the Intermediary Rules suffer from the same constitutional infirmities that afflict Section 79(3)(b).

2. The restrictions imposed under the Intermediary Rules exceed the limits of reasonable restrictions under Article 19(2).

3. Rule 3(2)(b) is ultra vires Section 79(3)(b) since it goes beyond the legislative mandate of requiring intermediaries to disable content which is ‘unlawful’ and creates new categories of substantive proscriptions which are not defined anywhere. Furthermore use of such vague and extremely subjective terms, which are incapable of specific legal definition, hands untrammeled and unguided discretion in the hands of the Executive as also motivated third parties.

4. The Intermediary Rules leave an intermediary extremely vulnerable and liable to be sued more often than not, since it provides unlimited avenues for take down of material- all a user has to claim is that the content is unlawful. Furthermore, the Intermediary has no means of testing the veracity of a complaint so made. The Rules give arbitrary powers in the hands of intermediaries.

5. Counsel Venugopal further suggested to the Court that the possibility of setting up a separate adjudicatory body that is allowed to hear matters ex-parte an shall be given one week’s time to decide upon the illegality of any content.

Listening to the arguments presented by each of the petitioners, the Court opined that Section 66A as well as Section 79 need to be implemented while adhering to guidelines set in this regard. As the Court rose on that day, the bench opined that the petitioners as well as the respondents shall come together and share suggestions on guidelines that equally balance freedom of speech with necessary constraints imposed on free speech. These could be submitted before the Bench a week after the Courts resume.

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As the Supreme Court resumed the IT Act hearings on 13 January 2015, all the Petitioners presented their arguments afresh before the newly constituted bench of Justice R. Nariman and J. Chalameshwar1. On the hearing day before the Petitioners could begin their arguments, Additional Solicitor General Tushar Mehta presented certain copies of blocked pages before the bench in order to show the kind of information that was sought to be blocked by the Government. He said that the impugned provisions must been seen in context of Article 19(2) of the Constitution. He stated that these were confidential, only for the Bench’s perusal and could not be shared with the Petitioners. However, the bench asked the Solicitor to provide the petitioners with a copy with a caveat to not circulate it.

Thereafter Counsel Prashant Bhushan, who had argued before the previous bench, opened the final arguments on behalf of Common Cause. Counsel Bhushan began by stating the Preamble of the IT Act before the Court and said that the basic object of the Act was to promote e-commerce and provisions like Section 66A and 69A were never meant to be a part of the original act and were added much later. Citing examples like the arrest of Shaheen Dhada in Mumbai over a Facebook post about Bal Thackeray, the arrest of a person over a tweet about ex-finance minister Chidambaram’s son, he said that Section 66A creates a regime wherein anyone sending e-mails, SMS, using Facebook, which may cause annoyance to somebody could be arrested and gives authority to the police authorities to barge into anyone’s house, search and seize, arrest as well as block content. He challenged 66A on the ground that it is vague and exceeds permissible grounds under Article 19 (2). Counsel Bhushan argued that we cannot have a penal statue so vague that an ordinary citizen cannot, on a plain reading understand the provision. To this the bench observed that the provision was much wider than blocking under Section 69A. Counsel Bhushan added that Section 66A has a chilling effect on free speech which is integral to any democracy. In support of his arguments he cited A.K. Roy vs. Union of India & Anr.2 in which it has been held: “the impossiblity of framing a definition with mathematcial precision cannot either justify the use of vague expressions…”

Counsel Bhushan argued further before the Court that persons who are offended by someone’s statement online are free to file for Defamation, which is non-cognizable, moreover the accused will get an opportunity of being heard, unlike 66A where arrest is without trial. He further said Article 19(1)(a) also includes the right to offend. Counsel Bhushan listed Sections 124(a), 153(a) of the IPC stating that offences covered under 66A were already being dealt with under the IPC.
The Bench observed that even though all the offenses may be covered under the Indian Penal Code, the slight distinction is that the offenses are committed through a computer communication. They further added that technology is certainly a distinguishable medium and distinction based on a medium could be made, although it would have to conform to Article 19(2). On Counsel Bhushan’s submission that a medium cannot decide the contours of a fundamental right, J. Chalmeshwar observed that while that was true, medium could certainly decide the restrictions on free speeh. To this J. Nariman added that content of a right is different from the content of the restriction and carving out a separate law is perhaps justified.

J. Nariman also asked all the petitioners to see which terms under section 66A can fall within the restrictions of Article 19(2) and also to look at the American cases of John Doe, Schenck and Abrams that deal with free speech. The bench also observed that all the expressions under section 66A even though provided under Indian Penal Code are open ended whereas under IPC they are qualified and have some aspect of mens rea. J. Chalmeshwar said that section 66A includes too many offences under one section and the clarity provided under IPC is not provided in the present section and it might be preferable to provide more clarity as to what situations are covered.
Up next was Counsel Ranjit Marar arguing for Anoop M.K.3 Ranjit Marar, much like Gopal Shankaranarayanan, argued before the Court the unconstitutionality of Section 66A, stating three key features that were particularly objectionable about the provision: a) Vague b) offensive message need not be received by anyone i.e. 66a does not specify a recipient c) Mens Rea is absent from the provision. He further stated that as far as Sections 66A (a) and (c) were concerned, there was no clarity and persons accused of these offenses would not even know the reason for their prosecution. He further stated before the Court that 66A can be said to have taken some of its terms from Section 127 of the UK Communications Act 2003, however that also criminalises only those messages that affect a specific recipient.

Senior Counsel Sajan Poovayya presented his arguments on behalf of Rajeev Chandarshekhar on 14th January 2015. Counsel Poovayya commenced his arguments by submitting before the Court that out of all amendments of Section 66 under the IT (Amendment) Act 2008, Section 66A alone was vague and he posed a question before the Court as to the missing element of mens rea from Section 66A. He further stated that the factum of communication being initialized is itself criminalized under Section 66A. Counsel Poovayya argued that like in the physical domain a person is aware of what the boundaries are, what constitutes an offense, there must also be clearly demarcated boundaries defining the boundaries in the internet domain. He said that terms like “grossly offensive, menacing character” do not fall under the restrictions under Article 19(2). When Section 66A is juxtaposed with the Intermediaries Guidelines of 2011 it causes a chilling effect on users. Relying on The Collector of Customs, Madras vs. Nathella Sampathu Chetty and Anr.4, he stated that if a law has to be valid, it must pass the Article 19(2) test. Counsel Poovayya further argued that the moment a provision is vague, it it susceptible to arbitrary use. While concluding his arguments the Counsel submitted before the Court that the ethos of free speech is important, not because India is a democracy but because that is who we are- we have always been free to speak our mind. We tend to criminalise everything we don’t understand for eg. Using wireless apparatus used to be a crime under the Indian Wireless Telegraphy Act 1933.

Thereafter, Senior Counsel Soli Sorabjee presented his arguments on behalf of Shreya Singhal. He started his submissions by stating before the Court that any restriction on free speech must fall within the ambit of Article 19(2) and Section 66A uses expressions that are vague. He urged the court to declare the provision unconstitutional by stating that we cannot make free speech dependent on such sujective notions as are provided under Section 66A. He further added that Section 66A suffers from a vice of vagueness, conveys different meanings to different people, therefore creating a chilling effect on free speech. While stating that words like “annoyance and inconvenience” were not specific heads under Article 19(2), he said that restrictions on free speech cannot be based on the medium that is being used to exercise that right and as such medium makes no difference. He posed the following question before the bench: “what will remain of free speech if it were made dependent upon subjective notions of the complainant?” He further added that Section 66A can impose severe punishment and eventually lead to self-censorship. While stating that the 66A falls completely outside the purview of Article 19(2) he said that this law must be struck down.

Up next were Counsel Parikh and Counsel Karuna Nundy appearing on behalf of PUCL. Much like in the last argument Counsel Parikh brought to the Court’s notice the recommendations of the Standing Committee as regards the Information Technology Bill 2006, wherein the Committee had on a close scrutiny of Section 66A(b) denied that the provision efficiently tackled the problem of spam as had been stated by the DIT. He said that the impugned provision in its current form failed to provide any protection from spam, moreover the provision creates stand-alone offenses and to that extent communication without intent is also brought within its ambit. He said that restrictions on free speech have to be within the contours of Article 19(2) and therefore must be clear and unambiguous. Moreover he argued, there should be a close and proximate nexus between the danger caused by expression and the punishment. He said “When a person is going to suffer criminally, he should know exactly what it is for.” He also said that the terms used under Section 66A need to be well defined. Thereafter, Counsel Nundy argued the unconstitutionality of Section 69A submitting before the Court that while content may be blocked in extreme situations, no new offense should be created. She further added, with respect to the Rules formulated under Section 69A, the powers given to the designated officer under the Section 69A Rules are uncanalized. She further stated that delegated legislation must not be violative of Article 19(2).

The next petition to be heard was Mouthshut.com’s challenge to the Information Technology (Intermediaries Guidelines) 2011. Senior Counsel Shyam Diwan presented arguments for the petitionerf. Senior Counsel Diwan began his arguments by bringing to the court’s notice the nature of the petitioner’s business. Mouthshut.com is an intermediary under the IT Act 2000 that provides an online platform to consumers wherein they share reviews, photos, blogs etc. about goods and services used by them. Mouthshut.com offers a one-of-its-kind service wherein consumers can, with the help of reviews and feedback from others, decide on products and services they wish to purchase. The case of Mouthshut.com is that ever since the Guidelines of 2011 were notified, the website has been inundated with numerous threatening calls, legal notices from business organizations asking them to take down negative reviews and the petitioners are continuously being sued across the country for non-compliance with these notices. Senior Counsel Diwan also presented before the Court the several notices so received, included notices received from police authorities, under Section 91 Criminal Procedure Code, asking for information of users. Senior Counsel pointed the bench towards on specific instance wherein the petitioners had received a bogus Supreme Court order from one such aggrieved person. Counsel Diwan argued before the Court that the legislative intent of section 79 was to exempt intermediaries from liability arising out of third party content and the guidelines prescribed by the Central Government under Section 79 (2)(c) were required to advance the object of Section 79(1) and could not in effect operate to emasculate this object. He added that the Guidelines travel way beyond the legitimate regulatory sphere reserved under the Constitution with respect to restricting free speech. Moreover, the Guidelines restrict information of certain kinds which are not contemplated in Section 79. Senior Counsel Diwan further argued that the Guidelines operate to introduce censorship not envisaged by Section 79 and directly conflict with the limited take down regime envisaged by the Parliament under Section 79(3). Moreover, the trigger of take-down provision is a written intimation by any ‘affected person’ thereby introducing censorship by private edict. He added that there was neither any provision for putting back or restoring third party information once removed. Counsel Diwan submitted before the Court that the Guidelines create a restrictive regime which hampers the capacity of companies, and if whittled down to this extent, it would result in a figurative exodus of intermediaries from India’s jurisdiction to one with well settled safe harbour protections and clearly defined procedures for take-down.

The last petition to be heard by the bench was IAMAI’s (Internet and Mobile Association of India), with Counsel Sai Krishna presenting the arguments on the organization’s behalf. IAMAI has challenged Section 79(3)(b) as well as the Guidelines 2011. Counsel Krishna commenced his arguments by emphasizing on the direct consequence of the restrictions imposed by the impugned provisions, which would be to muzzle free speech. To this Justice Nariman observed that the act of taking down content by private party did indeed have a muzzling effect on free speech. Counsel Krishna submitted that there should be direct nexus between what is required from a certain provision and its impact on free speech. Counsel Krishna further added that an intermediary is really the architect of the internet but Section 79(3)(b) in its current form creates a chilling effect on these intermediaries. The bench while pointing out the anonymous nature of the internet, stated that it could be bothersome to trace the identity of wrong doers on the internet. However to this Counsel Krishna replied that there is a vast majority of cases where defamation takes place on the internet and it is entirely possible to determine the identity of accused persons. While citing the vagueness of Section 79 in that it uses the words “upon receiving actual knowledge” counsel Krishna submitted before the Court that while the intermediaries would be willing to take-down content on a government order, the requirement to remove content on receiving actual knowledge is wide and vague. While challenging the unconstitutionality of the Guidelines 2011 he said that the procedure for take down as laid out is vague. He further added that the safeguards in case of take-down of content should be similar to those given under rules issued under Section 69A. To this Justice Nariman also observed that an intermediary cannot be given an adjudicatory role and neither can they be forced to determine if an unlawful act has been committed or not.” Justice Nariman also stated that the procedure laid out under the Rules5 under Section 69A was very elaborate as regards duties assigned to different persons, the same result must be achieved with the Guidelines 2011. Counel Krishna further stated before the Court that the impugned provisions in their current form were making it unviable for intermediaries to carry on their business and the provisions were directly in violation of their rights under Article 19(1)(g). Justice Nariman asked the petitioners to examine the situation in Finland and Lithuania and to understand the liability regime in those countries. As the Court rose that day, the Solicitor General was asked to present his arguments on February 3rd.

Watch this space for more updates as the case progresses…