A MEDIA circus was a certainty when the 86 year old, self-branded tiger of the Indian far-right passed away. As television channels submitted servile eulogies to the late Bal Keshav Thackeray, they also conveyed a general call for a bandh or a public curfew of India’s premier megalopolis, Mumbai.

Annoyed by the total shutdown of public functions, a 21 year old student did what is a course of nature for millions in India. She posted an update on Facebook at around 7 pm on 18 November 2012, voicing her discomfort with the city shutting down ‘due to fear and not due to respect.’ One of her friends gratuitously broadcast the message by sharing it. Her friend further commented, ‘Everyone knows its done because of fear!!!.’

This seemed fairly innocuous, online political banter that adopts an excess of apostrophes to replace full stops. However, within 15 minutes of the post, she received a threatening phone call and soon thereafter was told a large mob had gathered near her uncles’ hospital. In a state of panic at around 7:40 pm, she deleted her post and put up an apology, pleading, ‘pls pls forgive me as ur sister….’ The 21 year old student was Shaheen Dhada and her friend who shared the message was Rinu Srinivasan. Within an hour Shaheen Dhada was whisked away to the local police station where a mob of about 1500 persons had gathered and were becoming aggressive. Rinu Srivinvasan soon joined her.

Within hours a complaint was filed by one Bhushan Anant Sakhe in which he referred to Shaheen Dhada as ‘Muslim religion Shaheen Farooq Dhada.’ Based on this complaint, FIR no. 189/2012 was filed under Sections 295A of the Indian Penal Code, 1860, and 66A of the Information Technology Act, 2000. Though the prosecution under Section 295A was dropped, it continued under Section 66A of the Information Technology Act. This disproportionate, wholly immoral act set into motion a constitutional challenge that would define the contours of Internet freedom in India.

Shaheen’s case was not a one-off. Section 66A criminalized online communications on the basis of vague phrases that were passed off as legal ingredients. On a plain reading, they did not clearly articulate any purpose except the stifling of online speech. The laundry list of phrases under which people could complain and the police could register a first information report (FIR), included, ‘annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will.’ Hence, the provision came to be applied indiscriminately against, inter alia, a professor in West Bengal who criticized the chief minister of the state, making an allusion to a line from a Shyam Benegal movie, two Air India employees for a Facebook post against a trade union leader and some politicians, and a businessman who criticized the son of a Tamil Nadu politician on Twitter.

 

All these instances were cited in the petition of Shreya Singhal filed in the Supreme Court painting an accurate picture of an abusive law. Filed barely a week after the arrest of Shaheen Dhada, the petition resulted in an immediate order by the Supreme Court that was gripped with concern as the abuse of Section 66A came to be widely reported by the media. It still remained to be determined whether this was an instance of abuse of law, or whether the law itself was abusive and constitutionally inconsistent. But before we get to the court’s judgment, it is important to take a step back.

The Information Technology Act, 2000 (‘IT Act’) did not always have Section 66A. When first notified on 9 June 2000, the act only contained the perhaps unnecessarily express articulation of online obscenity under Section 67. One of the most significant features of this act was its protection of online intermediaries. This was an acceptable policy goal that had been recognized through a series of litigations in the United States and European Union’s E-Commerce Directive which recognized that the nature of Internet communications relied on third parties facilitating it. Surely such entities did not have the ability to screen and police end user behaviour – or their Facebook status updates. Even if such technical means could be devised, it would result in massive injury to civil liberties.

 

The protection of online intermediaries was contained under Section 79 of the IT Act. It did not take long for this provision to be tested. Around November 2004, a clip containing sexual acts by minors was listed for sale on an online bidding platform. This clip, popularly referred to as the DPS MMS scandal, was widely sensationalized by the media. It played on several social prejudices – youth breaking from tradition by indulging in sexual perversion, Internet anarchy, western influences challenging conservative Indian values, and a middle class hypocrisy that demanded criminal action to arrest it.

The Delhi Police acted swiftly to quell the growing public pressure by inter alia interrogating and then arresting Avnish Bajaj, the CEO of the online bidding platform. His arrest was made for offences under various provisions under the Indian Penal Code in addition to the Information Technology Act. Though he was released on bail, it brought the provisions of safe harbour for intermediaries into focus.

On analysis it was found that Section 79 of the Information Technology Act, 2000 only applied to criminal offences under the same law. It did not apply to offences under the Indian Penal Code. Hence, the defence of a safe harbour protection was unavailable for the offence of obscenity under the Indian Penal Code while being available for the offence of obscenity under the Information Technology Act, 2000. The treatment of law to apply a limited safe harbour to offences only under one provision of obscenity law was logically inconsistent and opposed to a stated policy goal. This prosecution was only one of the many deficiencies noticed in the Information Technology Act, 2000. As it did not provide for the legal treatment and regulation of a large part of online behaviour, many commentators started to term it antiquated.

 

An expert committee was soon constituted to study the operation of the law which suggested changes in its report dated 25 August 2005. It is important to note that this committee did not recommend any provision such as Section 66A. However, somewhat mysteriously, when acting on its recommendations, an Information Technology (Amendment) Bill no. 96 of 2006 was drafted that suddenly gave birth to this provision. This proposed amendment was referred to a Parliamentary Standing Committee, which submitted a detailed report on 7 September 2007.

Between this committee’s doors much changed. The committee’s recommendations suggested a broader, harsher Section 66A that would be intended to apply to spam emails. This exists as the sole marker of legislative intent as to why the amorphous Section 66A came into being. Acting on this, a new amendment act was drafted which was passed the very next day it was introduced in Parliament. It was brought into law without debate, cleared with a bunch of other bills that were portrayed as a legislative response to the 26/11 Mumbai terror strikes. The Information Technology Amendment Act, 2008 was eventually notified on 5 February 2009.

The new powers for censorship created by this amendment were noticed immediately. Three provisions in it stood out prominently. First, the vague Section 66A that could potentially criminalize online speech; second, a nebulously redrafted safe harbour under Section 79 that failed to specify the, ‘due diligence’ necessary to avail it; and finally, a freshly minted Section 69A which created the power for blocking of websites. The full effect of laws was to create vast powers to chill speech through criminal law, and pressure online intermediaries to serve as choke points if that failed to block websites without any safeguards. Shreya Singhal’s constitutional challenge after Shaheen Dhada’s arrest sought to contest all three.

 

After the Supreme Court issued notice in Shreya Singhal’s petition on 29 November 2012, the debate against Internet censorship became a legal challenge. During its pendency several diverse parties filed petitions enlarging the scope of the challenge beyond Section 66A. These included the advocacy oriented NGOs Common Cause and the Peoples Union for Civil Liberties, the online review website Mouthshut, the parliamentarian Rajeev Chandrashekhar and the Internet and Mobile Association of India.

Collectively they challenged the constitutionality of Sections 66A, 69A and the rules for blocking websites made under it, Section 79 and the intermediary liability rules. It was a massive constitutional challenge in which pleadings took two years to complete and final hearings continued for months before two different benches of the Supreme Court. It was finally reserved for judgment by the bench of Justices J. Chelameswar and R. Nariman.

Even though the Supreme Court of India has a general reputation for upholding the constitutional guarantee to free speech and expression under Article 19(1)(a) there was reason to be nervous. The court has in the past often rejected constitutional challenges holding restrictive legislations to be within the scope of a reasonable restriction as permitted under Article 19(2). As Justice Nariman read the last paragraphs of the judgment, it became clear that Section 66A was struck down as unconstitutional. Smiles were seen across the courtroom, genial expressions after a labour of moral conviction. It was hoped they would hold till the evening when the full judgment would be made available.

 

To properly understand the significance of the Shreya Singhal case one has to look both at its result as well as its reasoning. Let’s first analyse the reasoning for Section 66A after which the blocking power and the safe harbour for intermediaries is commented upon. The striking down of Section 66A of the Information Technology Act, 2000 was achieved by the Supreme Court on the basis of a complex exercise of constitutional interpretation considering the fundamental right to freedom of speech and expression.

The court first drew a clear, novel distinction between the different forms of speech. This analytical framework considered speech to consist of three classes – discussion, advocacy and incitement. By studying case law, the court held that while discussion and advocacy are permissible categories of speech, incitement could be restricted by legislation. For this legislation to be valid, it has in turn to fall within the breadth of ‘reasonable restrictions’. Such reasonable restrictions are grounds of legislation mentioned under Article 19(2) of the Constitution under which speech can be restricted. It includes phrases such as ‘public order’, ‘decency and morality’, ‘defamation’ etc. Hence, a law to restrict incitement should fall within the ambit of ‘reasonable restrictions’ by first being made under a specific category of restriction, and then second, be reasonable as well.

We often hear criticism that points to the amorphous nature of reasonable restrictions. The Shreya Singhal case cuts through such objections with precision. It takes each individual restriction, dissects its meaning through case law and then applies it to Section 66A. By its analysis of ‘public order’, ‘decency and morality’, and ‘defamation’, it holds that Section 66A falls outside the ambit of each of them. At this point it even repels a novel argument by the state that a ‘relaxed standard of reasonableness’ should be adopted given Section 66A applies to content that can be transmitted to ‘trillions of people with just one click.’ The Solicitors General’s math and innocence with legal precedent is called out by the court as it quotes from the Secretary, Ministry of Information and Broadcasting, Government of India v. Cricket Association of Bengal, (1995) 2 SCC 161 that, ‘the wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial.’

 

The court further holds Section 66A invalid for two more reasons. It first invokes the void for vagueness doctrine. This, at its root, holds that vague laws which result in penal consequences need to be sufficiently precise and give guidance for their application. Without it, people do not have adequate notice as to the line of legality. By going through the vague phrases which do not contain any ingredients, the court holds that Section 66A has ‘no manageable standard’ and is void.

The second doctrine that is applied is of overbreadth and the resulting chilling effect. To apply it to this context, the court throws up a hypothetical that is not so far removed from reality. It states that several ‘liberal views’, ‘such as the emancipation of women or the abolition of the case system’ may end up being ‘grossly offensive’ to ‘large sections’. Given that such speech is mere advocacy, and the phrase ‘grossly offensive’ is mentioned in Section 66A, it would catch ‘the dissenting mores of the day within its net.’

Based on this reasoning it holds Section 66A to be overbroad since it would chill speech that is otherwise legal. This is how Section 66A was arrested by the Supreme Court. A vague, capricious law that sought to jail a cartoonist, a professor, college students, pilots and writers for small, daily acts of dissent. The court’s opinion can be considered the closest equivalent of a judicial mic drop.

 

But, the court does not stop here. It further analyses the constitutionality of the blocking power under Section 69A and the safe harbour for online intermediaries under Section 79. On the blocking power, the court is much more circumspect. It rejects the constitutional challenge as to inadequacy of safeguards in the blocking process. The basic points of grievance to the blocking rules were an absence of notice to the author of the content that their site would be blocked, and the final order not being publicly available. The court did not properly appreciate either point.

The bulk of its reasoning focuses on an illustrative distinction which was drawn by the petitioners in which they contrasted the existing safeguards for book banning with website blocking. Provisions for book banning obligate a public gazette notification containing reasons why a book has been banned and also provides an expedited, direct appeal to a state High Court. On the contrary, the website blocking orders are secret and no hearing is given to an author (rather the hearing is contingent on identification of an ‘originator’). Hence, there is a complete lack of transparency and natural justice resulting from website blocking. Imagine locking down an entire digital library to ban one individual web page, without a notice to the author, or the blocking order being made public.

 

The opinion quickly recovers from this dip to firmly protect online intermediaries. As previously stated, there existed a level of ambiguity in the conditions under which the safe harbour provisions could be availed by platforms such as Facebook and Twitter for the content posted by their end users. Even though in principle they were exempt from liability, the conditions to avail this immunity were poorly defined and even suggested proactive monitoring, filtering and pre-screening of content. This would bring in editorial control making them virtual judges.

The court brings great clarity here by stating that online platforms only have an obligation to remove content when they gain actual knowledge. This has to be on the basis of a government or a judicial order rather than a private complaint. The net effect of this is that even if ‘large sections’ find the content illegal and complain directly to the online platform, the immunity will hold and they will not be required to judge the legality of the content. Their safe harbour is only breached when they receive a formal government or judicial order and fail to comply with it. People often forget but such protections are vital to the health of online communications. Most online platforms are private corporations. Vague laws that create even a remote potential for liability makes them take down content, irrespective of its legality.

The Shreya Singhal case is the first constitutional judgment that properly analyses the role of the Internet in advancing our fundamental right to free speech and expression. In time it will join the progeny, if not the trinity, of the three most important press freedom decisions of the court – Sakal Paper (1962) 3 SCR 842, Bennet Coleman (1973) 2 SCR 757 and Indian Express (1985) 2 SCR 287. Irrespective of its destined status, there are alarming signs that the advances made by it are under threat from the legislature, executive and the judiciary.

Even after being struck down, more than two thousand people were illegally prosecuted last year under a non-existent Section 66A. There exists a legislative proposal to bring back Section 66A, modelling it on the often abused hate speech provisions in the penal code. A recent Brooking’s report confirms fears that the various state governments have in the last year resorted to wholly suspending Internet access rather than blocking individual websites. This is on a scale that exceeds countries such as Algeria, Iraq and Uganda – countries that are either marred by civil strife or lack strong constitutional protections for speech.

 

Even the Supreme Court, in a series of orders in different cases, has re-opened the issue of intermediary liability. It has at various instances directed or suggested online platforms to proactively censor and screen content. This includes a newfangled, frivolous prescription termed the ‘doctrine of auto-block’. Under it search engines are required to proactively block entire phrases from search results. These trends are worrisome but given their recent origin they will gain definition only with time. They indicate a natural proclivity of power to regulate a medium that has given a voice to millions of Indians. In this is an important lesson – if eternal vigilance is the price of liberty, the Internet has made more people speakers who in turn will defend it. The Shreya Singhal case is a reminder that irrespective of how high the odds may look, the tide inevitably comes back.