Sec 66(A) ruling: Digital freedom wins

The Shreya Singhal verdict has put an end to the irony of a modern statute with a primitive content.

The Shreya Singhal judgment has taken away Section 66A from the statute book. It thus puts an end to the irony of a modern statute bearing a primitive content. It attempts to prevent liberal democracy turning illiberal – a theme that engaged attention of thinkers like Fareed Zakaria.  Though one may feel a slight discomfort with the retention  of  Section 69A which gives unbridled power for the state to block the devices, each citizen now enjoys the freedom  of being  a free republic on his own or her own. 

The judgment that follows the conventional textual methodology, extracts the Indian judicial expositions on freedom of expression, like Romesh Thapper (1950), Sakal Papers (1961), Bennett&Coleman (1973) etc. It refers to several US judgments and the views of Justice Brandeis who spoke about valuing liberty “both as an end and as a means” since “public discussion is a political duty”.

The conventional defence of legislative freedom was inadequate to protect the offending section which did not satisfy the requirement of “clear and present danger”, an American concept in the context of legislative legitimacy. Freedom is so precious that it could be curtailed only when community interest is so visibly endangered. That is to say, according to the apex court, the expunged section was not justified on the basis of any perceived danger of cyber offence defined under that section being committed widely and repeatedly. 

Section 66A is fascist in its tone and horrendous in content. Read it once more, and forget it forever. Even annoyance, inconvenience, obstruction, insult etc. by way of a digital communication could invite penal consequences. It so happened that 66A had numerous victims ranging from innocent laymen to good hearted activists. Cartoonist Aseem Trivedi, propagandists Shaheen Dhada and Renu Srinivasan , shipping professional Devu Chodankar  etc. were all booked for one reason or the other.

The statute prescribes a punishment extending up to three years of imprisonment with fine. Even the innocent ‘likes’ and digital messages invited penal consequences. The provision did not have the concept of mens rea (guilty mind), a vital ingredient for any criminal offence, normally. Therefore, freedom struggle in the cyber world had to take a litigious form which ultimately succeeded.  The constitution again proved itself to be a living document.

In Justice Nariman’s judgment, the “persuasive value” of American judgments on the content of freedom of speech and expression” was rightly realised.  Like the Supreme Court judgment in Aveek Sarkar (2014) on obscenity and Delhi High Court judgment in Suresh Kumar Kaushal (2009) on sexual minority rights, the judgment in Shreya Singhal also reflects modernism and modernity in Indian legal thought.  We have, sometimes, an incredible India on the bench.

Vague laws

Vagueness in a penal statute is an offence committed by the statute. It in turn is a punishment to the society. The earlier school of Indian Constitutional Law did not recognise vagueness as a serious infirmity or vitiating factor. At best, it was taken as a deficit to be cured by interpretive exercise (See K.A Abbas , 1970). But Shreya Singhal has taken a drastic deviation in clear terms.

‘Vague laws may trap the innocent by not providing fair warning’, the Supreme Court said in Kartar Singh (1994). Thus the “open ended and undefined” expressions in Section 66A deserved to be struck down. On account of the “chilling effect” on free speech, the statute had the inherent tendency to “freeze the freedom of expression” as correctly noted by the Court.

The provision is a big mistake committed by the UPA government which the Narendra Modi government did not rectify.  They justified the statute in its entirety. Leaving the judgment apart, the legislators should ask as to how such provisions get engrafted in a penal statute.  The amending statute was passed without deliberations.

A penal provision will be tested for its vulnerability during unusual times and abnormal situations. Fundamental rights attain significance on their curtailment, say during national emergency. Likewise, the possibility for misuse of Section 66A (though it is empirically proved otherwise) under a dictatorial government is a matter of grave democratic concern.  All liberal laws and even the constitution will have to stand the test of politics. As Italian thinker Giorgio Agamben indicates, state of exception (to the law) is as significant as the law. 

Draconian statutes like TADA and POTA were upheld by the Supreme Court while parliament chose to revoke it subsequently. In the case of Section 66A, neither the legislature nor the executive found it fit to correct the mistake or to make a confessional statement before the apex court.  The insensitive state thus justifies a sensitive court.

(The writer practices at the Supreme Court and the Kerala High Court)

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