SC junked section 66A, but freedom of speech worth debating

R JagannathanFirstpost.com

Are issues relating to free speech on the internet different from the same issues on traditional media like print, television or public speeches? Can the same offences or crimes committed on the internet draw higher penalties than elsewhere?

The answer is yes, and this is implied in the same widely-acclaimed judgment of Justices J Chelameswar and Rohinton F Nariman, that yesterday (24 March) struck down section 66A of the Information Technology Act as unconstitutional.

Logically, one would presume that an offence like defamation would be treated the same way whether committed on Twitter or in a newspaper column, a TV broadcast or a politician’s speech. But the same Supreme Court bench that junked section 66A for being vague and violative of the constitutional guarantees on freedom of speech, seemed to suggest that theinternet is a different animal where there could be separate laws to deal with the same offence.

The court, therefore, did not see merit in the anti-66A petitioners’ claim that the offences mentioned in the IT Act were violative of article 14 of the constitution, which guarantees equality before the law and against discrimination. Article 14 says: “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

The petitioners against section 66A had pointed out that punishments for some offences were harsher in the Information Technology Act than under the Indian Penal Code (IPC). Defamation on the internet, for example, attracted a maximum sentence of three years in jail and/or fine, but only two years under the IPC. Section 66A made defamation a cognisable offence, whereas the IPC treated it as non-cognisable.

However, the Supreme Court bench said that the internet merited its own law, which need not be the same as for other media.

The bench rejected the idea that “there is no intelligible differentia between the medium of print, broadcast and real live speech as opposed to speech on the internet. The intelligible differentia is clear – the internet gives any individual a platform which requires very little or no payment through which to air his views. The learned Additional Solicitor General has correctly said that something posted on a site or website travels like lightning and can reach millions of persons all over the world….We make it clear that there is an intelligible differentia between speech on the internet and other mediums of communication for which separate offences can certainly be created by legislation. We find, therefore, that the challenge on the ground of Article 14 must fail.” (Read what the court said on pages 101-102 or the final orderhere).

What this implies is that speech on the internet will have to meet a different standard for various specified offences than what is usually application under the Indian Penal Code.

It essentially means that you can have separate laws based on a perceived differential potential for damage. It means running amok with a truck can be treated differently from running amok with a car - because the former has a greater potential for inflicting damage.

The idea is worth debating for the offence itself is the same.

The writer is editor-in-chief, digital and publishing, Network18 Group