Section 69A of IT Act must also go

The SC upheld the Section 69A of the IT Act, which allows the government to block websites, and was challenged in Shreya Singhal

Zombies aren’t found only in fiction and films. We have in India, as we discovered recently, a zombie piece of legislation -- Section 66A of the IT Act, 2000. Struck down in 2014 in Shreya Singhal v Union of India for violating the constitutional guarantee of free speech, it is still being used by police to arrest and deny bail to those who might have said something remotely controversial on the internet. It’s one of those instances in which a largely beneficial judgement has been ignored by police and bureaucracy.

As welcome as the Shreya Singhal judgement was, the Supreme Court did make one error -- one that continues to have a bearing on our right to free speech and became relevant in the context of the recent phone-hacking revelations.

Apart from Section 66A, Section 69A of the IT Act, which allows the government to block websites, was also challenged in Shreya Singhal. But the SC upheld it on the basis that the grounds for blocking a website are the same as those found in clause 2 of Article 19 -- the provision of the Constitution that allows reasonable restrictions on freedom of speech and expression. This meant that as long as any blocking is based on “the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order,” it would be acceptable, since these were more or less the grounds that the Constitution permitted.

This has also meant that the provision that permitted interception of electronic communications (Section 69) was also constitutional since it allowed the government to access your information on one of the same grounds.

Yet, the Supreme Court in Shreya Singhal made a crucial mistake in interpreting Article 19(2). The clause allowed Parliament to make laws that allowed for restrictions on freedom of speech. What it did not envisage is Parliament giving away its law-making powers on this front wholesale to the government (or specifically a bureaucrat designated by the government). This is why Section 69 and 69A of the IT Act are constitutionally dubious.

Article 19(2), when it was originally introduced read slightly differently. It permitted laws relating to libel, slander, decency, morality, or security of the State, and considered such laws as not limiting freedom of speech. However, it was changed by the first amendment to the Constitution in 1950, which expanded the scope of the clause to include “friendly relations with foreign States”, “public order” and “security and integrity of India” as grounds to limit freedom of speech.

Crucially, the term “reasonable restrictions” was introduced into the Article, giving more scope for citizens to challenge laws restricting freedom of speech on the ground that they were unreasonable. This meant that while a journalist can be punished under law for printing false and inflammatory stories that might lead to a communal riot, Parliament cannot by law mandate pre-censorship of news stories on the possibility that some of them may cause disturbances.

In Shreya Singhal, while upholding Section 69A, the SC overlooked one crucial difference. Under the Constitution, “reasonable restrictions” on free speech are supposed to be imposed by “law”. A “law”, whether made by the Union or a state, President or Parliament, is a general norm applicable to all. It is different from a “direction,” which is made to a specific person. For instance, requiring you to stop at a traffic light is a law, but traffic police asking you to halt your vehicle is a direction.

Terms such as “security and integrity of India”, “public order” are those whose meaning and applicability in a particular context are always debatable. This is why there is a parliamentary process for law-making -- different viewpoints are heard and reconciled and such terms and their limits are clearly defined. If free speech is to be restricted, it should be for reasons that the public can understand and appreciate.

However, when a bureaucrat directs that a website be blocked or an individual’s communication be intercepted, s/he is applying their own understanding of the terms “security and integrity of India”, “public order” etc. Such directions are not made public and there is no requirement in law to even debate them internally. What Sections 69 and 69A of the IT Act effectively do is to give a government servant the power to determine the extent of an individual’s freedom of speech. This is at the heart of the problem with these sections of the law.

When it comes to the use of Pegasus, there’s no doubt that its use is illegal whether the government sanctioned it or not. However, even without the use of this technology, we must not forget that our laws enable some terrible invasions of privacy and free speech.

Just because the government does it, it’s not legal.