Apar Gupta
Firstly, I am deeply grateful to the editors of Seminar Magazine and Ananth Padmanabhan, Associate, Carnegie India for drawing me in to write an 3500 word opinion piece on the constitutional basis of internet freedom. The article titled, “the constitutional basis of the for internet freedom” is published in the November, 2016 special issue titled, “Digital Dividend”. An edited version of the article will be made available online next month. An unedited copy of the article can be read here.
The article focuses on an analysis of the Shreya Singhal decision. Within it I try to explain the significance of the judgement and the unique circumstances which lead to it. There are some limitations present in the article. Partly due to a word limit, but largely due to constraints on time when I was writing. I am listing them below:
- Absence of discussion on the intermediary rules : The Shreya Singhal judgement did not only strike down Section 66A but substantially improved the intermediary liability regime in India. This did not happen by accident. For years many individuals, institutions and companies engaged in policy dialogues, produced research and analysis to improve it. There were even efforts made by parliamentarians to improve them, notably P. Rajeev’s statutory motion and the subsequent report of the Standing Committee of Parliment on Delegated Legislation. It is my view this requires to be documented separately given its length and complexity.
- Article 14 reasoning : One of the crucial determinations that has not been analysed at length is the rejection of the Article 14 challenge. The Article 14 challenge argued for a parity between content offences committed online and offline. This was both in the nature of the substantive offence and the penalty prescribed under it. On both counts the Court rejects the challenge. It reasons to an extent that the speed and relative ease of publication online may give rise to new offences. By itself this reasoning is not problematic, as it must be acknowledged that online interactions may give rise to new forms of crime. However, if crimes are created without adequate debate, or an actual social need they in future will pose harms similar to Section 66A.
- Division bench problem : The Shreya Singhal judgement has been given by a bench strength of two judges. This is a problem not only due to Article 145(3) of the Constitution. The provision requires a minimum bench strength of 5 judges should be composed to determine cases which require interpretation of the constitution. Even though the Shreya Singhal case can be distinguished by stating that provisions of the constitution were not be interpreted but of the Information Technology Act, 2000 — such reasoning is fraught with risk. A larger bench determining case would have lent the necessary heft to the case to establish it as a precedent which could stand the test of time. It would be compel greater judicial discipline in its application.
With these limitations I hope readers enjoy it. As always I am happy to take in any feedback.