Seven years ago, section 66A of the IT Act was struck down in 2015 as unconstitutional. Now, the union government has included the same section, with the exact same wording, in its proposals to the UN. Section 66A of the Information Technology Act, 2000 made it a punishable offence for any person to send ‘grossly offensive’ or ‘menacing’ information using a computer resource or communication device.
By the judgement of Shreya Singhal vs Union of India, a two-judge bench of the Supreme Court of India in 2015, on the issue of online speech and intermediary liability in India this act was taken down and considered unconstitutional on grounds of violating the freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India.
Further, it was also made clear that online intermediaries would only be obligated to take down content on receiving an order from a court or government authority. The case is considered a watershed moment for online free speech in India. The vague and arbitrary terms used in the Section led to much misuse of the act both in personal and political nature, with several criminal cases being instituted against people in instances of online speech, including political commentary and humour. Section 66A and 79 of the IT Act, as well as rules made under this Act, created a hard liability for internet intermediaries.
India’s submission to the cybersecurity convention at the United Nations said, “Each state party shall adopt such legislative and other measures as are necessary to establish as an offence under its domestic law, if any person sends, by means of a computer resource or a communication device any information that is grossly offensive or has menacing character” which clearly has the same wordings as the section 66A.
India regularly suffers from a wide variety of cybercrimes. Cybercrimes cost the global economy hundreds of billions of dollars every year. A legal basis for preventing them can be provided by this convention of the UN. But the Modi government is trying to bring restrictions on online speech freedom through the backdoor using this. While the Ministry of External Affairs did not respond to queries about the proposal, the legal thinking behind the move may be to defy the apex court and to make sure that if the restrictions pass muster at the UN that India now has an ‘international obligation’ to reintroduce this section.
“It is beyond shocking that the government is trying to introduce Section 66A through backdoor legislation. Is the government sending a message to the Supreme Court or to constitutional law experts or to freedom of speech supporters or to everyone, that the government will do what it thinks appropriate, regardless of what the Constitution and the Courts may say” Justice Madan B. Lokur, a former judge of the Supreme Court, said to the press.
“It is unusual to see the Indian government submit a struck down provision such as this at an international forum, this marks a departure from its stance on Section 66A back home”, said Krishnesh Bapat, Associate Litigation Counsel at the Internet Freedom Foundation.
Salman Waris, Managing Partner at TechLegis Advocates and Solicitors stated “For the provision to be struck down was not in the best interests of the government, the present effort to reintroduce it at the international level means that if this becomes part of an international treaty [and India ratifies it], it may give the government an excuse to reintroduce the law nationally on the pretext of meeting international treaty obligations”, analysing union ministry’s move forward with reintroducing the struck down act.
He also said that “A new law is needed that protects the interests of intermediary platforms where such speech is made, but it should also ensure that no Indian’s Fundamental Rights are harmed. In any case, you don’t need a provision as broad as Section 66A to counteroffensive speech online”.
Even Though India has proposed this already discarded act, Nigeria, Luxembourg, Georgia, El Salvador, the European Union, and the United Kingdom opposed it with some of them specifically noting that it would impact freedom of speech in their countries.
There is a rising concern among international civil society that a treaty or a convention to counter cybercrime would significantly risk individual rights and freedom of speech. “A binding international treaty has the potential to expand government regulation of online content and reshape law enforcement access to data in a way that could criminalize free expression and undermine privacy,” said Human Rights Watch’s Deborah Brown in an online essay last year, which is the suspected main agenda of resurrecting a struck down law.