By: Kartik Agarwal and Jayesh Kumar

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Freedom of speech and expression is one of the most cardinal principles of democracy. It includes the right to express one’s views and opinions through any means; such as by writing, word of mouth, printing, etc. Owing to the evolution of technology and internet, social media has become the most preferred medium of expressing one’s sentiments, some of which may be found to be derogatory and demeaning by certain people. However, the question arises — is it a valid ground to restrict one’s freedom of speech and expression in the garb of laws such as Section 66A of the Information Technology Act (hereinafter ‘IT Act’)? This has been addressed in the case of Shreya Singhal v. Union of India (hereinafter ‘Shreya Singhal case’), wherein the Court had struck down the said provision as it was violative of Article 19(1)(a) of the Constitution. However, taking us by surprise, the said provision is still invoked by the police authorities for making an unlawful arrest. The most recent example of it is the arrest of a BJP activist in West Bengal, for sharing a morphed image of Ms. Mamata Banerjee, the present Chief Minister of West Bengal.

SECTION 66A AND THE SHREYA SINGHAL CASE

Section 66A provides that “any person who sends, by means of a computer resource or a communication device, –

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device;

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, 

shall be punishable with imprisonment for a term which may extend to three years and with fine”.

After the death of Shiv Sena Chief Bal Thakrey in 2012, a bandh was declared by the Shiv Sena workers in Mumbai. Subsequently, two Mumbai-based girls published a post on Facebook expressing their displeasure over the bandh, due to which they were arrested by Mumbai police under Section 66A of IT Act. When the case knocked on the door of the Supreme Court, the Court struck down the impugned provision. The Court observed that the said provision does not distinguish between advocacy, incitement, and discussion, and restricts even the advocacy or discussion of one’s innocent views and opinions. Further, the Court held that damage of reputation is the basic ingredient of defamation, and it is not necessary that something which causes inconvenience or annoyance to someone will also tarnish their reputation. Furthermore, the provision does not provide a precise definition of the offences it punishes such as annoyance, inconvenience, etc. Therefore, the provision is too vague in nature and thus, it falls foul of Article 19(1)(a) and is not saved by the restrictions prescribed under Article 19(2).

NON-COMPLIANCE TO THE COURT’s DECISION IN SHREYA SINGHAL CASE

Judgments of the Supreme Court constitute a source of law. Law declared by the Supreme Court is law of the land and no court or tribunal or any other authority can disregard the law provided by the Supreme Court. Further, by virtue of Article 141, notice cannot be taken under a law which is declared unconstitutional as it becomes null and void. However, that has not been the case with Section 66A of IT Act. The authorities have flouted the Court’s decision and continue to invoke Section 66A for making arrests. National Crime Records Bureau’s data reflects the increase in the number of arrests — from 2,423 in 2014 to 3,137 in 2015; albeit the judgment was declared in March 2015. Even after 2015, such incidents have continued to occur. In light of these increasing incidents, a PIL (hereinafter ‘PUCL case’) was filed before the Supreme Court in 2019 to enforce the judgment at the ground level. In response, the Court has issued directions to the Union Government to make available copies of the judgment to the Chief Secretaries of all states and union territories, who in turn have to provide copies to the Director General of Police in each state within a period of 8 weeks. Further, the Court has also asked all the High Courts to make the copies available to all District courts.

However, the distribution of copies of the judgment has not ameliorated the situation. Recently, a BJP activist was arrested under Section 66A in West Bengal for sharing a photo of Chief Minister Mamata Banerjee on Facebook, wherein her face was digitally edited onto actor Priyanka Chopra’s image from the MET Gala. Interestingly, in this case, the Court has adopted a non-committal approach to the use of Section 66A. While granting bail, the Court asked the accused to tender an apology to Ms. Mamata Banerjee for sharing her morphed image and failed to deprecate the act of the concerned authorities.

The two basic reasons that can be attributed to such ignorance of the law are as follows:

1. The authorities, including the Magistrate, are unaware of the developments in law, and of recent judgments of the Apex Court and High Courts. 
2. The authorities are influenced by political power to take steps in ignorance of the law.

In all probability, the latter reason was the determinant behind the arrest of the BJP activist, as her arrest came amidst the last phase of the 17^th Lok Sabha elections, which saw a bitter exchange between Prime Minister Narendra Modi and West Bengal CM Mamata Banerjee.

CONTEMPT OF COURT

Article 129 provides that the Supreme Court is the court of record wherein it has the power to punish for contempt of itself. Wilful disobedience or non-compliance of the Court’s order amounts to contempt of court. In M/S. Shorilal & Sons v. Delhi Development Authority, the Court held that public bodies cannot escape their accountability of carrying out the orders made by the Court in public interest and therefore, the officers who were found guilty of inaction were proceeded against for contempt. The police authorities, as well as the magistrates, who take cognizance of arrest under Section 66A, disobey the Supreme Court’s order and thus, are liable to be proceeded against for contempt of court. Further, ignorantia juris non excusat (ignorance of the law is no excuse) is an accepted, general principle.

SUGGESTIONS

To meet with this alarming situation, certain measures are required to be taken, which can be as follows:

1. Cognizance of an offence taken under Section 66A of IT Act by the magistrates, upon the complaint registered by the police authorities, prime facie reflects unawareness regarding the judgment among both the magistrates as well the police authorities. Thus, to cope with this shortcoming, discussion sessions should be organised for both police authorities as well as magistrates, wherein discussion on the key decisions of the Apex Court and High Courts shall take place. Further, emphasis should also be laid in these discussions upon the legislation enacted by the Parliament. 
2. The central and state governments should make the general public aware of their rights, and recent developments taking place in statutes. It will help them in raising an objection if they are subjected to persecution by being put behind bars in the garb of such non-existing laws.
3. In the PUCL case, the Court had ordered issuance of copies of the judgment, within a period of 8 weeks, to police authorities and district courts. Notwithstanding the order given 3 months before the occurrence of the incident, the BJP activist was arrested and the arrest was taken cognizance of under Section 66A. This shows that the efforts of the Supreme Court are going in vain as it failed to create any difference in the functioning of the authorities. Such incidents will continue to take place unless the government, along with the judiciary, takes stern actions against the authorities who are flagrantly violating the Supreme Court’s decision. 

CONCLUSION

Supreme Court is not only entrusted with the duty to interpret the law, but also to ensure that the law is duly implemented in the way it is interpreted. The bigger question that the Court has left unanswered is who is accountable for the agony suffered by the innocent persons who have been illegally detained under the non-existing law. Further, such incidents leave the decision of court redundant as it conveys a message that no matter what the law is, authorities will continue to take law in their hands. Furthermore, it puts an additional burden on the defendant as, if their lawyer is aware of the said judgment and objects to the application of Section 66A, only then shall they be saved; otherwise they will be prosecuted under the non-existent law. In other words, their liberty and right to free speech and expression are now left oscillating in the air depending upon the knowledge of their advocate.

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(Karitk and Jayesh are currently law undergraduates at National Law University, Jodhpur.)