An Alternative To Section 66A Of The Information Technology Act, 2000: Revisiting Shreya Singhal Case

In the 21^st century, the Internet has become a facet of this modern era. Marking the century as the commencement of the digital world and the digital revolution. Concerning the steps taken by the Indian government to digitize probably everything, we have reached a stage where 'Online World' has become a part of our daily life. A considerable amount of time is spent by most of the people online. This has also let us evolve with various legislations to deal with crimes of the Cyberworld like Cyber – harassment/stalking/defamation/bullying, etc. The primary legislation in India concerning Cybercrimes is The Information Technology Act, 2000(hereinafter referred to as 'IT Act'). However, in 2009 by way of an amendment act, Section 66A^[i] was added to it. It gained a lot of attention as it created a ruckus in its application. Finally, in 2015 in the renowned case of Shreya Singhal vs Union of India,^[ii] it was struck down and held unconstitutional.

Usage of Section 66A before Shreya Singhal Case

Section 66A was added in the IT Act to criminalize the act of sending offensive messages to anyone by the way of a communication device. However, the language of the provision is ambiguous. Also, it is pertinent to note that the boundaries and scope of the words used in the provision were also not set as they were not defined, for example, the words like 'grossly offensive', 'menacing character'. Due to the following reasons, the provision was misused against many people. As something may be perceived as 'grossly offensive' by someone while for others it is not. Due to the lack of definitions of such words which created a lot of confusion and led to arrests of various people all across the nation.

Some instances of its misuse are that: - a girl named Priyanka Sharma was sent to judicial custody for 14 days only because she shared a meme based on West Bengal's Chief Minister, Mamta Bannerjee.^[iii] Another instance is when a businessman of Puducherry was arrested for posting offensive messages against K. Chidambaram, son of former union finance minister, P. Chidambaram. The comments made by the businessman were that K. Chidambaram amassed more wealth than All India Congress Committee chairperson Sonia Gandhi's son-in-law Robert Vadra.^[iv] After the demise of Shiv Sena leader, Bal Thackeray, a girl named Shahin Farooq Dhada questioned the statewide 'bandh' respectfully via her online post. However the same meant to be offensive to some people and the girl was booked under Section 66A of the IT Act, even another girl named Renu Srinivasan who liked that post was also booked under the same provision.^[v] A class 11th student from Bareilly was also arrested because he posted an objectionable post on a social media platform against Azam Khan, a senior Samajwadi party leader.^[vi]

Keeping in mind the above incidents which showcase how the law was being misused and arbitrary arrests and detentions were taking place all over the nation. Shreya Singhal, a law student filed a PIL in the Supreme Court challenging the constitutional validity of the said provision.

Shreya Singhal vs Union of India, 2015.

After the arrest of the two Palghar girls for criticizing the statewide 'bandh' after the demise of Bal Thackeray, Shreya Singhal, a law aspirant filed a PIL in the Supreme Court of India challenging the constitutional validity of Section 66A of the IT Act, 2000. It was challenged primarily on the basis that it violated Article 19(1)(a) and is not saved by the eight subjects covered in Article 19(2). A test laid down in the case of Chintaman Rao vs. State of Madhya Pradesh^[vii] to know what "reasonable restrictions" means in several cases.

"The phrase "reasonable restriction" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word "reasonable" implies intelligent care and deliberation, that is, the choice of a course which reason dictates."^[viii]

Section 66A did not pass this test as the language used in the verbatim of the provision was vague and unclear which gave arbitrary powers to the authorities to interpret the provision as per the situation. Also, Section 66A curtailed freedom of speech in every way possible. If seen thoroughly, on any possible information available there will be two categories of people, one supporting it and the other against it. So the information may seem offensive to the other set of people. That's why there were detentions and arrests were taking place all over the nation with the help of this provision.

For a restriction to be made in the "interest of public order", it must also have a reasonable relation for achieving the desired public order, and if it fails to do the same then it does not qualify as a reasonable restriction under the said clause i.e. in the "interest of public order".^[ix] In the current case, it was held that Section 66A did not directly disrupt the 'public order' as it was related to sending offensive messages which are sent from one person to the other. In the case of Arun Ghosh vs. State of Bengal^[x], it was held that a question needs to be asked to ascertain whether the public order is being disturbed or not, which is:-

"The question to ask is: Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed? This question has to be faced in every case on facts."^[xi]

On this junction, I would like to politely disagree with the Hon'ble court's point of view for example, if a person A, constantly bombards females with unwelcomed inappropriate messages online, which may amount to cyberbullying/harassing/stalking. Now if there are a significant amount of people committing the same thing, will it not amount to disruption of public order? As there will be a high percentage of women (including minor girls) who will be facing a lot of trouble because of these people. A similar opinion like this was opined by the Supreme Court in the above-mentioned case but was with respect to a man who does similar actions in person and not on the internet. With the emerging presence of everyone on the internet, it's time to revise our penal legislation because the absence of criminalization of such actions that fall in the category of 'new crimes' are being left unnoticed.

In the judgment of Shreya Singhal vs Union of India^[xii], it was held that Section 66A did not have any proximate connection with Incitement to Offence nor did it relate to Defamation. On the point of defamation, if a female has been abused online on her social media post or has been said something inappropriate about her, will that not amount to defamation? If the same act was being done in-person it would lie under the offense of defamation as it would have qualified for all the pre-requisites required to establish defamation, but if the same thing is been occurring on the internet then why the same is not being qualified as defamation, only because Section 66A was with respect to offensive messages. If yes, then will a defamatory comment or a defamatory post, come under it?

There was no demarcation of what 'grossly offensive' and 'menacing character' actually meant, which created a commotion amongst everyone be it the common people or the authorities like police and even the judiciary at times. The question arose whether the 'void for vagueness' doctrine is applicable with respect to Indian law, the same was answered in K.A. Abbas vs. The Union of India and Anr.^[xiii] wherein it was held that,

"The real rule is that if a law is vague or appears to be so, the court must try to construe it, as far as may be, and language permitting, the construction sought to be placed on it, must be in accordance with the intention of the legislature. Thus if the law is open to diverse construction, that construction which accords best with the intention of the legislature and advances the purpose of legislation, is to be preferred."^[xiv]

In Kartar Singh vs. State of Punjab^[xv], it was held that an enactment is void for vagueness if its prohibitions are not clearly defined. The court opined that the law should give a person of ordinary intelligence a reasonable opportunity to be able to distinguish what is prohibited so that he may use his mind to act prudently.

It is pertinent to note that Section 66A had a chilling effect on free speech as indicated in Para 83 of Shreya Singhal vs Union of India, where it was held that,

"It is obvious that an expression of a view on any matter may cause annoyance, inconvenience or may be grossly offensive to some. A few examples will suffice. A certain section of a particular community may be grossly offended or annoyed by communications over the internet by "liberal views" - such as the emancipation of women or the abolition of the caste system or whether certain members of a non-proselytizing religion should be allowed to bring persons within their fold who are otherwise outside the fold. Each one of these things may be grossly offensive, annoying, inconvenient, insulting or injurious to large sections of particular communities and would fall within the net cast by Section 66A. In point of fact, Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net."^[xvi]

This indicates that how the language of the provision of Section 66A made it obvious for the abuse of the provision, the undefined words and the unclear boundaries made it more vulnerable to be abused by and interpreted in any manner as fashioned by the authorities.

Section 66A of the IT Act, 2000, was also challenged on the basis that it violated Article 14^[xvii] of the Constitution of India, as petitioners contended that there was no intelligible differentia between the medium of print, broadcast, and real live speech as opposed to speech on the internet. However, it is pertinent to note that the court clarified that there lies an intelligible differential between speech on the internet and other mediums of communication for which separate offenses can certainly be created by legislation.

The aftermath of the Judgement

A committee headed by former Lok Sabha Secretary-General, T.K. Vishwanathan was formed after the Supreme Court held Section 66A of the IT Act, 2000 unconstitutional in 2015. The committee proposed a few amendments to provisions of IPC i.e. Section 153 and Section 505, which even implemented would not have done much to curb any kind of sexual offense against women or online hate speech, drastically. Committee also relied on the 267th report of the Law Commission of India and suggested the appointment of officers appointed at state and district levels to scrutinize cybercrimes which was the only good step.

The arbitrary arrests and detentions definitely lowered down after scrapping Section 66A of the IT Act, but due to non-awareness of the recent judgments and orders by the Supreme Court to the lower level of executive and judiciary, Section 66A has turned into a 'Legal Zombie'. As there is no medium other than the Official Gazette to make the local police and the lower judiciary aware of the recent judicial decisions by the Apex Court. Section 66A is still being used by various police departments to book people on instances of online hate speech. This undermines the freedom of speech, rule of law, and institutional integrity of the Supreme Court.^[xviii]

Recourse available to a Victim of Cyber Bullying/Harassment/Stalking

Indian Penal Code, 1860 (hereinafter referred to as IPC) is the main penal legislation concerning crimes in India. So let's analyze the laws a woman may use if she has been abused online/ a sexually offensive comment or remark was passed about her privately or publicly (eg. On a social media post) she was sent sexually explicit material/ she was demanded for sexual favors/ she was sent rape threats/ etc. in her private chat box or maybe publicly online.

1. Sexual Harassment - Section 354A of IPC.^[xix]
2. Stalking - Section 354D of IPC.^[xx]
3. Defamation - Section 499 of IPC.^[xxi]
4. Criminal Intimidation - Section 503 of IPC.^[xxii]
5. Word, gesture, or act intended to insult the modesty of a woman (Eve-teasing) - Section 509 of IPC.^[xxiii]

However, we may observe that by the actions done by a person mentioned in the first paragraph of this subheading, he has tried to outrage the modesty of a woman but the IPC provision concerning the same i.e. Section 354 of IPC^[xxiv] could not be enforced specifically against the person as the provision doesn't mention doing such an act online.

The list of provisions of IPC listed above can happen to be applicable in a far-fetched manner in the case of that woman. Also because of the absence of a specific law regarding such offenses online, the provisions of IPC are subjected to the interpretation that they also govern cybercrimes but in the bare provision there is no mention of committing any act online. This is nothing but a shock to the wide diversity of India and its innumerable legislations for almost everything but the absence of a specific law for such grave misconducts/crimes happening daily online.

Recommendation

In 2012, P. Rajeeve, a Member of Parliament from Kerala moved a resolution for amending Section 66A of the IT Act. However it is pertinent to note that in that discussion, he quoted that "The bill was passed in seven minutes on 23 December 2008 the last day of winter session -- without any discussion,".^[xxv] The same can be found in the Parliamentary Bulletin of the winter session of 2008^[xxvi] which showed how hastily it was passed without discussing it adequately and to be specific it took merely 21 minutes. Even though scrapping of Section 66A was a quintessential thing to do, I believe to the contrary that Section 66A needed an amendment rather than being struck down. The scope and the boundaries should have been shifted for the safety of women on the internet and should have been defined clearly.

The rationale behind implementing Section 66A was diligent, however, due to some fallacies, the idea behind implementing the law was not water-tight which led to rendering it unconstitutional. However, there is a stringent need for India to adopt a law criminalizing the offenses pertaining to sexual misconduct against women online, thereby an amendment should be made to the IT Act, 2000. The amendment should add a provision that should be somewhat similar to Section 66A, but it should not have the flaws of Section 66A like vagueness, undefined terminology, no set scope/boundaries. Therefore I have reformulated the language used in Section 66A, to make the provision concerned for sexual crimes against women online. The provision reads:-

66-A. Punishment for sending "sexually" offensive messages through communication service, etc.-Any person who sends, by means of a computer resource or a communication device,-

· (a) any information that is grossly "sexually" offensive or has menacing "demeaning" character which reflects the prurient interests;

The words in the quotes are either added or substituted from the language of Section 66A. It may need some changes for it to be passed. However, the terms used in the provision should be defined clearly with the explanations, like :

• Sexually offensive - Any information (text/image/video/gif etc.) other than pertaining to scientific, literary, or artistic value, which depicts a sexual act of any kind/pornographic material which reflects the prurient interests to a prudent man may be called as sexually offensive.

For Example

1. A, a man publicly comments on a post of B, a girl on a social media platform, from the comment it is evident that the man- asked for sexual favors/passed a remark about the girl demeaning her character/sent a rape threat/used abusive language/any other activities which may deem fit as falling under this category. The man committed an act that can be termed as sexually offensive.
2. A, a man privately sends a message to B, a girl via a social media platform, from the message it is evident that the man - asked for sexual favors/passed a remark about the girl demeaning her character/sent a rape threat/used abusive language/any other activities which may deem fit as falling under this category. The man committed an act that can be termed as sexually offensive.
3. Demeaning character - Any information(text/image/video/gif etc) other than pertaining to scientific, literary, or artistic value, which depicts that the character of the woman is lowered down, false questions/assumptions regarding her chastity are raised, any other act particularly of prurient interest which may deem fit to be categorized raised under this provision. Such an act should be categorized as of demeaning character.
   

For defining the term 'information' one may refer to Section 2(1)(v)^[xxvii] of the IT Act, 2000.

To contextualize the above recommendation with respect to the current laws applicable in India. One may perceive how the notion of "thinking of a prudent man" is considered while dealing with defamation cases specifically the ones regarding 'innuendo'. The approach of "thinking of a prudent man" may be adopted while categorizing something as sexually offensive or of demeaning character. As there can be cases where the act inconsideration may not fall under the said hard and fast definition or in the watertight definition but it may still be sexually offensive or of demeaning character. So an approach like this would be the best helping hand in such a situation. Section 66A penalized sending 'offensive messages' through online platforms, however, the law should have been amended in such a way that it should have penalized sending "Sexually offensive messages".

Also to consider something obscene there is a test laid down by the Supreme Court in Director General, Directorate General of Doordarshan v. Anand Patwardhan[xxviii]^[xxix], which is:

"this Court noticed the law in the United States and said that a material may be regarded as obscene if the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest and that taken as a whole it otherwise lacks serious literary artistic, political, educational or scientific value."^[xxx]

After 5 years of the scrapping of Section 66A of the IT Act, 2000, the provision has been haunting the citizens of India as it has transformed into a 'legal zombie', various newspaper reports and surveys claim that due to the absence of knowledge by the authorities that the provision is no more constitutional, people are still being booked under the draconian law, struck down 5 years ago. This is an irony that the world's largest democracy suffers from such a situation.

Although the decision to strike down Section 66A was a good decision, it could have been better if the judiciary would have defined the scope and meaning of it and would have construed it. The changes stated by the committee formed after striking down the provision were not meant to bring out a drastic change in the current legal system. By the reading of this paper which inculcates about the safety of women on the internet and the dire need of law to maintain the dignity of women on the Internet, so that at least they can feel safe online.

The new era has also created new crime and the existing penal provisions are not enough to tackle these types of crimes so the need of the hour is to create penal provisions to maintain the status quo of the society.

The author, Kartikey Srivastava has contributed this write-up during his research assistantship at M/s. Black Robes Legal. The views, thoughts, and opinions, as are so expressed, belong solely to the author, and not to any other person in any manner whatsoever.