The PCLS BLOG An initiative by the students of HNLU
The Blog has shifted to a new website! You can access it here or visit https://pclshnlu.wordpress.com/
All future blog posts will be published on the new website and the process of shifting the old posts is ongoing. |
(Mehula Liza Pallathu and Tapamoy Ghose are second year students of National University of Advanced Legal Studies, Kochi) Controlling obscene material is a policy of the Indian government, which is recognized in S.292 of the Indian Penal Code (I.P.C.), the constitutional validity of which was established in a line of judgments. S.67 Information Technology Act, 2000 (hereinafter to be referred to as the I.T. Act), is another step in extending the reach of these laws to the electronic medium. It lays down punishments for publishing or transmitting materials in electronic form, which is obscene and has the ability to corrupt the minds of those who read such materials. Two major flaws in this provision result in it becoming a censorship tool. Firstly, it is expansive: what it is and what degree is punishable is left to arbitrary interpretation. Thus the vague wording enables an expansive interpretation of S. 67 of the I.T. Act, which has been misused by the political executive time and again. S Thirumurugan, a 19-year-old youth from Tamilnadu, was arrested for allegedly making abusive comments about Prime Minister Narendra Modi in a private Facebook conversation for which he was sent to jail, under the S.67 of the I.T. Act. -In an Uttar Pradesh incident, the Supreme Court ordered the immediate release of freelance journalist Prashant Kanojia, who was arrested by the UP police under S.67 of the I.T. Act for allegedly making objectionable comments against state Chief Minister Yogi Adityanath. Secondly, the section does not differentiate between private and public conversations. A provision that is meant to control sexual material, clear from a cursory reading of the section, because of the ambiguity of terms used, is abused. In a study conducted by Point of View, an N.G.O., it was found that between 2002 and 2015, S.67 was the highest used section in the I.T. Act after S.66A, noting that that from 2008 to 2015, the number of cases filed under S.67 grew steadily from 105 to 749.[1] I. Breach of freedom to speech and expression. However, for a law to be unconstitutional, it must violate fundamental rights. Firstly, we will examine how the section violates Art.19(1)(a), which guarantees freedom of speech and expression, one of the foundational pillars of our democracy. 1. Public morality versus Constitutional morality Art.19(2) enshrines reasonable restrictions that can be imposed on this freedom—one of them being decency & morality. In Ranjit Udeshi v. State of Maharashtra, a constitutional bench of the Supreme Court for the first time discoursed as to what was meant by obscenity (as mentioned in S.292 I.P.C.) and what the extent and ambit of the word was . The court to aid its process interpreted decency and morality in Art.19(2) to be public decency and morality. However, in light of recent developments in the freedom of speech jurisprudence, this interpretation is redundant. Public morality would refer to the majority of the public, as a public can never have a uniform opinion. Thus in our sectarian country, this gives a majoritarian spin to the interpretation of reasonable restriction to free speech. However, majoritarianism is against the basic tenets of the Indian constitution, which has always protected the rights of the minorities. Furthermore, public morality is fast-changing. Thus, to put the responsibility of when the freedom of speech should be abrogated on such a fleeting factor is imprudent.[2] Thus we see that the definition of morality adopted in Ranjit Udeshi is short-sighted, as it gives more impetus to parties in power to define what should and should not abrogate speech and expression by shaping the public narrative. In a different line of cases, the courts have interpreted morality to be constitutional morality, moving away from the judicial trend of public morality[3]. Thus we need to see a similar trend in the freedom of speech jurisprudence. In Navtej Singh Johar v. Union of India, the Apex Court relying on the National Legal Services Authority of India v. Union of India and Naz Foundation v. Govt. of N.C.T. of Delhi & Ors. held that S.377 violated the freedom to expression, where they interpreted morality to be constitutional morality as opposed to public morality. Constitutional morality is an abstract concept that can be understood as the morality of the constitution. Similar to the basic structure doctrine, it is a concept that will be defined by the courts on the basis of the spirit of the constitution. 2. Is a ‘tendency' to corrupt enough to criminalize & abrogate autonomy of readers? To restrict speech on the ground that it may "tend" to corrupt not only authorizes far-reaching prohibitions but also insults the autonomy of the audience. By blocking speech on the ground that listeners might come to hold the wrong view, or get corrupted, the government and the court refuse to treat them as autonomous beings, This ideology is against the right to privacy put forth in Puttaswamy v. Union of India when read with the decision of the Apex Court in NALSA v. Union of India, which also granted autonomy over oneself and one's decisions. In a different line of cases, the court has dispensed with the tendency test, and insisted upon a close degree of proximity between speech and disorder. In Arup Bhuyan v. State of Assam, the Court had held that there must be “imminent incitement to violent action.” In Shreya Singhal v. Union of India, the court distinguished between advocacy and incitement. Advocacy of views, however unpopular, it held, could not be restricted. Incitement to public disorder – which required imminence between speech and disorder – could. Though not directly applicable, this admirable position of the Supreme Court needs to be applied to the much-abused obscenity laws in India as well, where persons are punished for even seemingly obscene comments. II. Monitoring private communication: A breach to the right to privacy? S.67 is dangerous as it penalizes the mere transmission of material electronically. As per Collins Dictionary, ‘transmission’ means “passing or sending of something to a different person or place”. So the impugned provision penalizes the transmission of any material, which the state may label as obscene or lascivious, even if such transmission is between two individuals through a private social media account. Punishing such transmission, the provision violates the right to privacy of the concerned individuals, which is a matter of grave concern. There are two aspects to privacy which are being nullified by this provision. Firstly, the provision does not distinguish between private and public conversations, and secondly, no distinction is made between consensual and non-consensual conversations. In Puttaswamy, a nine-judge bench of the Supreme Court, unanimously held that the right to privacy was a fundamental right under Art.21 of the constitution, a right, which everyone enjoys because he is human. After this, every law and provision of a statute which encroaches upon the right to privacy needs to withstand the touchstone of permissible restrictions of fundamental rights. For breaching the right to privacy, the three-fold requirements are to be met as follows:
First of all, there needs to be a law to encroach privacy as life and personal liberty violation cannot be excused without a procedure established by law, which is just, reasonable and fair law is a must.[4]It is worthwhile to note that the Apex Court established a more stringent form of this test in Govind v. State of Madhya Pradesh. It was held that privacy could be violated only to satisfy a compelling state interest. The same position was again adopted in PUCL v. Union of India (the phone tapping case). As pointed out by Chelameswar, J. in Puttaswamy, privacy claims are of two degrees. Ordinary claims can be tested under the basic “just, fair and reasonable” standard. However, serious claims, where the breach of privacy is severe, the law must go through the strict “compelling state interest” test. Privacy claims against S.67 of the I.T. Act are indeed serious, evident in the stringent punishment, and the highly invasive nature of the section, which may punish even private conversations between consenting individuals, and thus needs to pass strict scrutiny. Further, any invasion on the right to privacy needs to satisfy the proportionality test. The proportionality test indicates that the action undertaken must be proportionate to the objective it seeks to achieve. As Chandrachud, J. wrote in the Puttaswamy judgment, "proportionality is an essential facet of the guarantee against arbitrary state action because it ensures that the nature and quality of the encroachment on the right are not disproportionate to the purpose of the law." In the context of S.67, what can the compelling state interest be for violating the right to privacy? Eliminating the transmission or publication of obscene materials which affect morality. By also penalizing private communications that the state deems to be obscene, it goes overboard and thus fails to satisfy the “compelling state interest test." This is because the state's aim was to stop the 'corruption' of the public. A private communiqué is never supposed to be public, and should thus be protected. It gives the state an unreasonable amount of discretionary power, and the State action here is disproportionate and has no rational nexus with the objective of the I.T. Act or state policy. In any law which violates the right to privacy, such violation needs to be minimal. However, S.67 is highly invasive, thus failing the proportionality test. The second aspect of privacy, which is disregarded by this section, is to take into consideration the consensual status of the conversation. Whether a conversation is sexually explicit or not, the state should not impede conversations between consenting adults, as according to the guarantee of privacy. Further, infringing upon private conversations is allowing the state to become authoritarian. In Navtej Singh Johar v. Union of India, the court stressed the importance of consent and how criminalizing consensual private acts is unconstitutional. This distinction is evidently missing in this section, making it arbitrary, and thus violating Art.21. It is even more important because between 2015-17, out of 99 cases of obscenity that were registered and analyzed, 28 involved non-consensual productions of images or videos. However, those cases were not registered under S.66E (which deals with privacy violation), but under S.67, which deals with obscenity, the rest dealt with consensual transmissions.[5] Conclusion S.67 provides the state with dangerous ammunition by allowing the state to punish private communication between two consenting individuals. It has the potential to give rise to an Orwellian State, that can very well try to control the lives of its citizens by putting into place certain machinery and legislation, which serves its purpose. Sections 66E, 67A, 67B, and so on are also provisions which are put in place to control harmful and corruptive material in the digital medium. Thus S.67 serves no independent purpose. With a lack of clarity as to what obscenity means, it is a liability to the democratic structure of our country. In Puttaswamy, Bobde, J., in his majority judgment, stated that a legal provision could abrogate the right to privacy only if no other law could achieve the same result by infringing upon privacy in a lesser manner. Thus S.67 is redundant and unconstitutional. Lastly, S.67A by not distinguishing between the private and public conversation in the digital medium, to that extent is, we believe violating the rights enshrined in Art.19(1)(a) and 21. However, at present, it is the lesser of the two evils. [1]Point of View. (2018) Guavas and Genitals. Available at: https://itforchange.net/e-vaw/wp- content/uploads/2018/01/Smita_Vanniyar.pdf (Accessed: 16 July 2020). [2] Gautam Bhatia, Offend, Shock or Disturb 78(1ST ed. 2016 ) [3] Indian Young Lawyers Association & Ors. v. State of Kerala & Ors., (2019) S.C.C. 1. [4]Maneka Gandhi v. Union of India, (1978) 1 SCC 248. [5] Supra note 1.
0 Comments
Leave a Reply. |
editorial board
Executive Editors
Ruchira Joshi Hriti Parekh Managing Editors Yashowardhan Agrawal Associate Editors Avani Bajpai Nipun Chandrakar Devashish Jain submission guidelines
DISCLAIMER
The views expressed in the posts published on The PCLS Blog are solely their author's. The PCLS or the editors do not necessarily subscribe to authors' views.
Archives
August 2020
Categories
All
|