Over the last two months, much has been said about the controversial provision of the Information Technology Bill. Valid disagreements were presented about the provision that criminalises causing of annoyance, inconvenience, insult, intimidation, humiliation persistently by using electronic media. Moreover, the constitutionality of the provisions was also questioned by prominent constitutional lawyers.
Amidst all of this commendable outrage, it seems right to point out a similar predicament India faced after the year 2009 owing to an almost similar provision; if not completely. Whether the said provision is consistent or inconsistent with the constitution is not for a layperson to decide. It is for the moment up-to the learned parliamentarians and the judiciary if the bill is passed without any amendments. The best a layperson can do is provide arguments as an informed citizen as to why the provision appears to be unconstitutional and examples of similar provisions that were repealed by similar nations in the recent past. That is precisely what this article seeks to do.
The provision that forms the premise of this article is one which is contained in section 83 of the Information Technology Bill. One that imposes an imprisonment of up to five years or a fine of ten lakhs or both. In the year 2009, an amendment to the Information technology act, 2000 of India added a provision that imposed a prison term of up to three years where a person was found to send any information which he/she knows to be false 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. When we read the provision that the current bill has, it seems evident that the provision of the draft bill was to a certain extent borrowed from the Indian act of the same nature.
While the drafters, as circumstances would suggest, drew heavily from the Indian act; an important consideration during the drafting seems to have been forgotten. The said provision of the Information Technology act was subsequently repealed by the Supreme Court of India in the year 2015 in the case of Shreya Singhal v Union of India.
What is important is not the facts of the case but rather the reasons given for repealing the said provision. The provision was repealed on the grounds that it violated the freedom of expression granted by the Indian Constitution in that the provision was not able to meet the criteria for imposing reasonable restrictions on freedom of speech. Of particular importance here is our own constitutional provision regarding freedom of opinion and expression and the reasonable restrictions there under. It is an undeniable fact that freedom of expression is not an absolute right, it is like many other rights subject to certain restrictions provided such restrictions be reasonable. To that extent the provisos to article 17 sub-article 2 clause (a) details out the reasonable restrictions that may be imposed. It should also be noted that reasonable restrictions under our own constitution is not a unique one. It is a practice that is prevalent in many other nations and to that extent the conditions of reasonable restrictions are similar across nations. What follows naturally thus is the question as to whether the said provision of the bill is one of reasonable restriction or not? In light of the judgment passed in India it does seem that the provision of the bill is not one of reasonable restriction.
An important aspect of the judgment is that it details out the vagueness of the words of the provision. Neither the information communication technology bill nor the Indian act of the same nature defines the terms that give rise to an offence punishable by imprisonment. Therefore, it gives rise to vagueness, the result being that innocent persons are roped in as well as those who are not. Such persons are not told clearly on which side of the line they fall; and it would be open to the authorities to be as arbitrary and whimsical as they like in booking such persons under the said Section (paraphrased version of the judgment).
This reasoning brings the court to an important aspect and one which is dealt with great detail. The court through mentions of many international cases rightly and appropriately points out that when the terms are not defined, interpretation of such terms will depend on the ideals and the values of the person responsible for such interpretation rather than being interpreted in an open and neutral manner being confined within the context of the subject matter. Words that are so vague have no manageable standard by which a person can have said to commit an offence. As such, the use of vague words disproportionately invades the freedom of speech and the balance between exercise of freedom of speech and the reasonable restrictions placed under them. In light of the aforesaid one can only hope that our learned parliamentarians will reach the desired conclusion, if not faith in our judicial system seems to be the only recourse.
– This article was originally published by Yatindra KC in The Himalayan Times on February 9, 2020.