Liberals won a small victory on Tuesday when the Supreme Court struck down as unconstitutional Section 66A of the Information Technology Act that had criminalised the transmission of electronic communications that had the potential to annoy or offend people. The phrasing of what constituted a crime was so vague that a large percentage of tweets and Facebook posts could be deemed to contravene that law. Justice Rohinton Fali Nariman wrote on page 88 of his judgment:
Section 66A was an easy tool in the hands of politicians to punish their critics. While the likes of Subramaniam Swamy freely spread false, defamatory, and hate-filled propaganda across the web, ordinary citizens were regularly arrested and imprisoned for lampooning political leaders. Citing such examples, the petitioners argued Section 66A was inherently prone to misuse. In response, the government counsel assured the court the law would be applied judiciously (a promise repeatedly proven empty even as the case was being heard).bDismissing that pledge, Justice Nariman wrote (page 96):
An incomplete victory
It wasn’t a complete victory for the petitioners, though. The case had expanded to include two other controversial clauses in the IT act, Section 69A, which empowers the government to intercept, monitor, and decrypt private communication, and block websites; and Section 79 which places a burden on intermediaries like Google to monitor content, and “not to host, display, upload, modify, publish, transmit, update or share any information that is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever.”
The court held Section 69A to be constitutional, which means the government and police can continue to snoop on us virtually without restriction. It okayed Section 79 with one important proviso, that an intermediary would be obliged to block access to a web page pursuant to a court order only, rather than intimation by any “affected person”.
Even a partial victory is cause for celebration in these times, when everything from our choice of food to our choice of religion, not to mention what one can and cannot watch in the cinema, is increasingly constrained. With the Bharatiya Janata Party in power at the Centre and in many states, there is no chance of progressive legislation being drafted, so any advance in civil liberties hinges on the Supreme Court. Unfortunately, the court has often failed to uphold fundamental rights, notoriously during the Emergency, but also on a few important occasions in recent years. The most egregious example was the re-criminalising of homosexuality in 2013 by Justices Singhvi and Mukhopadhyaya after a landmark judgment in the Delhi High Court had ruled 377 of the Indian Penal Code (Unnatural Offences) unconstitutional insofar as it applied to sexual relations between consenting adults. Though the issue pertained to fundamental rights which are directly in the court’s purview, the judges kicked the ball back to parliament, which is never going to pass any pro-gay rights law.
The court has also been reluctant to strike down the absurd exception in Section 375 of the IPC which makes it impossible for a husband to rape his wife, provided they are not legally separated. The UPA government made a commendable adjustment in its perspective after the Delhi High Court verdict on Section 377, but refused to accept a recommendation by the Justice Verma committee favouring the criminalisation of marital rape. Last month, the Supreme Court rejected on technical grounds a petition that sought the criminalisation of rape within marriage.
The fundamental issue is not that getting liberal verdicts in the Supreme Court is something of a lottery. I believe increasingly that the problem is with our Constitution itself. It is not the unequivocally progressive tract I thought it was growing up, but a compromised document of middling quality whose best provisions have been diluted through amendments. The worst of the amendments was the very first, which curtailed individual rights and enormously increased the power of the state. It was drafted and steered through Parliament by Ambedkar and Nehru, so we can’t blame those who came after for messing up their good work.
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“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. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.”
Section 66A was an easy tool in the hands of politicians to punish their critics. While the likes of Subramaniam Swamy freely spread false, defamatory, and hate-filled propaganda across the web, ordinary citizens were regularly arrested and imprisoned for lampooning political leaders. Citing such examples, the petitioners argued Section 66A was inherently prone to misuse. In response, the government counsel assured the court the law would be applied judiciously (a promise repeatedly proven empty even as the case was being heard).bDismissing that pledge, Justice Nariman wrote (page 96):
“If Section 66A is otherwise invalid, it cannot be saved by an assurance from the learned Additional Solicitor General that it will be administered in a reasonable manner. Governments may come and Governments may go but Section 66A goes on forever. An assurance from the present Government even if carried out faithfully would not bind any successor Government. It must, therefore, be held that Section 66A must be judged on its own merits without any reference to how well it may be administered.”
An incomplete victory
It wasn’t a complete victory for the petitioners, though. The case had expanded to include two other controversial clauses in the IT act, Section 69A, which empowers the government to intercept, monitor, and decrypt private communication, and block websites; and Section 79 which places a burden on intermediaries like Google to monitor content, and “not to host, display, upload, modify, publish, transmit, update or share any information that is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever.”
The court held Section 69A to be constitutional, which means the government and police can continue to snoop on us virtually without restriction. It okayed Section 79 with one important proviso, that an intermediary would be obliged to block access to a web page pursuant to a court order only, rather than intimation by any “affected person”.
Even a partial victory is cause for celebration in these times, when everything from our choice of food to our choice of religion, not to mention what one can and cannot watch in the cinema, is increasingly constrained. With the Bharatiya Janata Party in power at the Centre and in many states, there is no chance of progressive legislation being drafted, so any advance in civil liberties hinges on the Supreme Court. Unfortunately, the court has often failed to uphold fundamental rights, notoriously during the Emergency, but also on a few important occasions in recent years. The most egregious example was the re-criminalising of homosexuality in 2013 by Justices Singhvi and Mukhopadhyaya after a landmark judgment in the Delhi High Court had ruled 377 of the Indian Penal Code (Unnatural Offences) unconstitutional insofar as it applied to sexual relations between consenting adults. Though the issue pertained to fundamental rights which are directly in the court’s purview, the judges kicked the ball back to parliament, which is never going to pass any pro-gay rights law.
The court has also been reluctant to strike down the absurd exception in Section 375 of the IPC which makes it impossible for a husband to rape his wife, provided they are not legally separated. The UPA government made a commendable adjustment in its perspective after the Delhi High Court verdict on Section 377, but refused to accept a recommendation by the Justice Verma committee favouring the criminalisation of marital rape. Last month, the Supreme Court rejected on technical grounds a petition that sought the criminalisation of rape within marriage.
The fundamental issue is not that getting liberal verdicts in the Supreme Court is something of a lottery. I believe increasingly that the problem is with our Constitution itself. It is not the unequivocally progressive tract I thought it was growing up, but a compromised document of middling quality whose best provisions have been diluted through amendments. The worst of the amendments was the very first, which curtailed individual rights and enormously increased the power of the state. It was drafted and steered through Parliament by Ambedkar and Nehru, so we can’t blame those who came after for messing up their good work.
