Peoples' Victory over Legal Zombie Section 118A

But the question is: can a state bring a law in breach of a Supreme Court judgment? The ordinance was facilitating the reincarnation of Section 66A of the Information Technology Act that was declared void ab initio as unconstitutional. Making a law against the profound judgment of the Supreme Court should be the real contempt of the apex court.

The appropriate use of contempt power given to Constitutional courts will be punishing the rulers for deliberate defiance of the judgement of the Supreme Court. The judiciary should abandon the use of contempt power to curb the criticism of a judge's performance and defects of judgements.

The cancelled ordinance says if you share an opinion on Facebook, like or love it, or forward it on WhatsApp, you face a threat of ending up in prison for three years, minimum, and paying Rs. 10,000 penalty. If the government or those in power feel that there is a threat, insult, defamation, abuse, humiliation of a person or class of persons in any comment on social media platforms.

Like Section 66A, and Kerala's earlier S 118D, the new Section 118A is equally draconian. See the three provisions with common criminality in violation of freedom of speech, for comparison:

This draconian penal provision - Section 66A of the Information Technology Act 2000 - was brought by the Union in 2007. This provision criminalised speech over the Internet, computers, or communication devices if such a communication was (a) "grossly offensive or menacing"; (b) where the author knows the information "to be false and meant for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will" or "meant to deceive or mislead the recipient about the origin of such messages, etc, shall be punishable with imprisonment up to three years and with fine." There is a similar anti-free speech provision 118D which also was struck down by the SC along with S 66A.

Catch-all expressions used again

Section 118-A was inserted in the Kerala Police Act by an ordinance almost a similar penal provision with ambiguous 'catch-all' expressions of social media expression crime. This means that a person can face three years in jail and a fine of Rs. 10,000 for any social media post that is considered "offensive" or "defamatory". Those who write, share the post, like or forward are threatened with this new penal law, which even Lord Macaulay did not dream of imposing on Indians during the British slavery times.

Expression 'grossly offensive or menacing', 'annoyance, inconvenience, danger, obstruction, insult' in 66A of the IT Act is found in Sec 118-A as 'threatening, abusing", 'humiliating'. 'Insult' in 66A became 'humiliating' in 118-A and in both sections the expression 'knows to be false' is common. Kerala's Section 118-A is more draconian as it also extends to 'injury to mind, property or reputation'. What does this mean?

How 66A was misused?

The history of misuse of Section 66A of the IT Act from 2007 to 2015, till it was struck down, and extended up to 2019 in spite of striking down, is documented. Some examples are here. Two girls - Shaheen Dhada and Rinu Shrinivasan - were arrested in Palghar in Thane district after one of them posted a comment against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray's death and the other 'liked' it. This was brought to the notice of the SC by a law student, Shreya Singhal, in 2012. Netizens and social media writers were harassed by various governments. In the wake of numerous complaints of harassment and arrests, the apex court had on 16 May 2013 issued an advisory that a person accused of posting objectionable comments on social networking sites cannot be arrested without the police getting permission from senior officers like IG or DCP. A boy was arrested for allegedly posting on Facebook 'objectionable comments' against senior Samajwadi Party leader Azam Khan.

Struck down by SC

The Supreme Court has struck down Section 66A Shreya Singhal's PIL in 2015 (Shreya Singhal v. Union of India, (2015) 5 SCC 1.) saying that it was contrary to both Article 19 that guaranteed Freedom of Speech and Expression and Article 21 that ensured Right to Life and Personal Liberty. Further, the judgment and final order in the Shreya Singhal case had rendered all investigations, prosecutions, and convictions based on Section 66-A IT Act illegal, and it forestalled any use of Section 66-A IT Act after the decision was rendered. Section 66A which was added in 2007, made the posting of "offensive" comments online a crime punishable by three years of jail.

Describing liberty of thought and expression as "cardinal", a Bench of justice J. Chelameswar and justice R.F Nariman said, "The public's right to know is directly affected by Section 66A of the Information Technology Act." The court was referring to ambiguity and open scope of the expressions used and said terms like "annoying", "inconvenient" and "grossly offensive" used in the provision are vague as it is difficult for the law enforcement agency and the offender to know the ingredients of the offence. Referring to two judgements of UK courts which reached different conclusions on whether the material in question was offensive or grossly offensive, the Bench of SC said when "judicially trained minds can reach different conclusions" while going through the same content, then how is it possible for law enforcement agency and others to decide as to what is offensive and what is grossly offensive? The Bench added, "What may be offensive to a person may not be offensive to the other." In paragraph 82 of the judgement, the SC held: ". . . Expressions such as "grossly offensive" or "menacing" are so vague that there is no manageable standard by which a person can be said to have committed an offence or not to have committed an offence."

The wide powers of the section were frequently used to stifle political dissent. The Supreme Court considered the provision vague and overbroad, such that it also penalised speech that was constitutionally protected. The court placed reliance on international and domestic standards and found that the provision arbitrarily and disproportionately affected the right to free speech. Significantly, the court found that the provision was not 'severable' and no part of the provision could be saved by reading it down. Therefore, the provision in its entirety was found to violate Articles 19(1)(a) and 21 of the Indian Constitution. This would have meant that the provision, being enacted after the Constitution, was 'still-born' or was deemed to never have existed on the statute books.

"Governments come and go but section 66A will remain forever," the Bench said, adding the present government cannot give an undertaking about its successor that they will not abuse the same.

Legal Zombie

Authors of the study report by the Internet Freedom Foundation coined a new expression "Legal Zombie" which means a mysterious post-death existence for a provision that was struck down. Their paper made a shocking revelation that about 65 to 70 cases cumulatively in different legal databases existed which shows abuse of the provision that is supposed to have been void ab initio i.e., from the date of its insertion in 2007 by an amendment to the IT Act. Obviously, these are cases that reached courts, which means it was the top of the iceberg and there could be several fresh cases registered in police stations, investigated, and thereafter considered by lower courts. This means a serious failure of the executive, legislature, and judiciary to respond to judicial development. Each of the violators should have been punished for contempt of court, not for non-enforcement of Supreme Court order, but for abusing a draconian penal provision which was struck down as unconstitutional. The public servants of three states have committed an unconstitutional 'criminality' by harassing people who exercised the constitutional right of free speech for a crime that was not a crime.

The Supreme Court was shocked to hear that authorities still continue to book people under the now extinct and draconian provision when this was brought to its notice by the People's Union for Civil Liberties (PUCL) in a PIL in 2019. The PUCL sought a direction to ensure implementation of Supreme Court's decisions as well as to raise legal awareness and the copies of the SC judgment be provided for by the Supreme Court to all High Courts for further dissemination to the district courts under their jurisdiction. Finally, the application requested that the High Courts pass necessary orders in all pending cases of 66A to ensure disposal. The PUCL request was allowed on 15 February 2019.

This is a peculiar challenge following a successful Public Interest Litigation, this challenge of post-decisional oversight and implementation. Again, a public interest group has to attempt to follow up the 2015 decision with further litigation, to initiate dialogue and expose the existence of a systemic problem for a solution by the apex court. A common man whose right to free speech is violated and he was confined to custody under Section 66A may not have the ability to access the Supreme Court or many organisations also may not have access to justice at the top court regarding such an issue in the public interest. The Supreme Court was shocked at the way the struck down penal provision was being abused. (See https://globalfreedomofexpression.columbia.edu/updates/2019/02/revisiting-section-66a-an-afterword-to-a-concluded-tale/)

Pinarayi's law

The Kerala government found another route to bring back this black law against social media freedom by rephrasing the provision 66A which was unconstitutional. It is unthinkable for a state government to draft such an Ordinance, without having a legal expert opinion on such a crucial Constitutional and democratic right.

This gives the impression that the left ideology is not a friend of freedom of speech and expression, which is the hallmark of democracy. But the Kerala government had to go back on its black law and shelve the ordinance, thanks to the vociferous exercise of 'freedom of speech and expression' by the people, Opposition, media, and civil society who exposed the draconian character of this amendment to the Kerala Police Act.

This ordinance means that Pinaray Vijayan wants criticism on social media to be silenced and netizens be jailed. If the Right-wing governments at the Centre and other parts wanted to abuse their authority to curb the voices against the wrongful policies of the establishments, it seems the Left wing also is not lagging in a similar approach.

Kerala advocate Anoop Kumaran filed a PIL before the Supreme Court in 2015 against the earlier insertion of Section 118(D) into the Kerala Police Act 2011. Section 118 imposes the penalty for "grave violation" of public order. As per Section 118(D), any person who causes annoyance to others in "an indecent manner" by statements, comments, calls or messages by any means shall face, on conviction, jail for three years or a fine of up to Rs. 10,000 or both. The Supreme Court struck down Section 118(D) of the Kerala Police Act and declared it unconstitutional for violating the fundamental right of freedom of speech and expression, along with striking down Section 66A of the IT Act. Kumaran told media that he would move the High Court against 118A-inserting-ordinance also.

Kumaran narrated to livelaw.in his experience of police harassment for 'liking' a Facebook post: "I am a member of an organisation namely "Manushyaavakaasha Koottaayma" that intervenes in human rights and environmental issues in Kodungallur in Trissur district of Kerala. The saga of events that led to the case began with one of my actions on Facebook that cannot be depicted as a punishable offence by any stretch of imagination. In January 2014, I "liked" a comment on Facebook related to an agitation for wages by nurses at the CRAFT Hospital, Kodungallur. The hospital responded to the Facebook post by filing a police complaint against those who 'liked' it. The retaliatory approach of the hospital was evident from the fact that it cherry-picked its 'enemies' from more than 1,000 persons who had 'liked' that comment and I was one of their enemies. This indeed exposes the misuse of a law by the powerful to suppress critical voices. The second instance that led me to file the case happened in June 2014 when a local journalist of Malayala Manorama, a Malayalam daily, received an award. I commented on a Facebook post on this award by asking 'Is this the post-modern model of fatherless journalism?' I was arrested on the basis of these two responses made by me on Facebook." (https://www.livelaw.in/a-true-account-by-anoop-kumaran-who-slayed-draconian-118d-of-kerala-police-act-along-with-66a-it-act-why-our-ruling-class-panic-of-the-democratization-of-communication-space/)

Admittedly, the Kerala government has said that this new law has been brought in to 'fill the gap' left by the repealing of the two laws, which leaves current laws 'inadequate' to prevent crimes online which have 'caused considerable distress to the women in our society' and cyber-attacks that are 'turning into a threat to privacy'.

As the ordinance has been cancelled, Kumaran need not fight another legal battle. The lesson from this incident is exercise Article 19(1)(a) right to save the Constitution.