Two Arguments Against the Constitutionality of Section 66A

In the immediate aftermath of the elections, free speech issues have come to the fore again. In Goa, a Facebook user was summoned for a post warning a second holocaust if Modi was elected to power. In Karnataka, a MBA student was likewise arrested for circulating an MMS that showed Modi’s face morphed onto a corpse, with the slogan “Abki baar antim sanskaar”. These arrests have reopened the debate about the constitutional validity of Section 66A of the IT Act, which is the legal provision governing online speech in India. Section 66A criminalises, among other things, the sending of information that is “grossly offensive or menacing in character” or causes “annoyance or inconvenience”. The two instances cited above raise – not for the first time – the concern that when it comes to implementation, Section 66A is unworkable to the point of being unconstitutional.

Like all legal provisions, Section 66A must comply with the fundamental rights chapter of the Indian Constitution. Article 19(1)(a) guarantees the freedom of speech and expression, and Article 19(2) permits reasonable restrictions in the interests of – inter alia – “public order, decency or morality”. Presumably, the only way in which Section 66A can be justified is by showing that it falls within the category of “public order” or of “morality”. The precedent of the Supreme Court, however, has interpreted Article 19(2) in far narrower terms than the ones that Section 66A uses. The Court has held that “public order” may only be invoked if there is a direct and immediate relation between the offending speech and a public order disturbance – such as, for instance, a speaker making an incendiary speech to an excited mob, advocating imminent violence (the Court has colloquially stated the requirement to be a “spark in a powder keg”). Similarly, while the Court has never precisely defined what “morality” – for the purposes of Article 19(2) – means, the term has been invoked where (arguably) pornographic materials are concerned – and never simply because speech has “offended” or “menaced” someone. Indeed, the rhetoric of the Court has consistently rejected the proposition that the government can prohibit individuals from offending one another.

This raises two constitutional problems with Section 66A: the problems of overbreadth and vagueness. Both doctrines have been developed to their fullest in American free speech law, but the underlying principles are universal.

A statute is overbroad when it potentially includes within its prohibitions both speech that it is entitled to prohibit, and speech that it is not. In Gooding v. Wilson, a Georgia statute criminalized the use of “opprobrious words or abusive language”. In defending the statute, the State of Georgia argued that its Courts had read it narrowly, limiting its application to “fighting words” – i.e., words that by their very nature tended to incite an imminent breach of the peace, something that was indisputably within the power of the State to prohibit. The Supreme Court rejected the argument and invalidated the statute. It found that the words “opprobrious” and “abusive” had greater reach than “fighting words”. Thus, since the statute left “wide open the standard of responsibility, so that it [was] easily susceptible to improper application”, the Court struck it down.

A statute is vague when persons of “ordinary intelligence… have no reasonable opportunity to know what is prohibited.” In Grayned v. Rockford, the American Supreme Court noted that “a vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” There are, therefore, a number of problems with vague laws: one of the fundamental purposes of law is to allow citizens to plan their affairs with a degree of certainty. Vagueness in legislation prevents that. And equally importantly, vague laws leave a wide scope of implementing power with non-elected bodies, such as the police – leading to the fear of arbitrary application.

While overbreadth and vagueness are problems that affect legislation across the board, they assume a particular urgency when it comes to free speech. This is because, as the American Supreme Court has recognized on a number of occasions, speech regulating statutes must be scrutinized with specific care because of the chilling effect: when speech is penalized, people will – out of fear and caution – exercise self-censorship, and the political discourse will be impoverished. If we accept – as the Indian Courts have – that a primary reason for guaranteeing free expression rights is their indispensability to democracy, then the danger of self-censorship is one that we should be particularly solicitous of. Hence, when speech-regulating statutes do proscribe expression, they must be clear and narrowly drawn, in order to avoid the chilling effect. As the American Supreme Court euphemistically framed it, “free speech needs breathing space to survive.” Overbroad and vague speech-restricting statutes are particularly pernicious in denying it that breathing space.

There seems to be little doubt that Section 66A is both overbroad and vague. However ill-judged a holocaust comparison or a morphed corpse-image may be, neither of them are like sparks in a powder keg, which will lead to an immediate breach in public order – or “immoral” in the way of explicit pornography. We can therefore see, clearly, that the implementation of the law leaves almost unbounded scope to officials such as the police, provides room for unconstitutional interpretations, and is so vaguely framed that it is almost impossible to know, in advance, what actions fall within the rule, and which ones are not covered by it. If there is such a thing as over-breadth and vagueness par excellence, then Section 66A is surely it!

At various times in its history, the Supreme Court has acknowledged the problems of overbreadth, vagueness and the chilling effect, but never directly incorporated them into Indian law. As we have seen, each of these elements is connected to the other: over-broad and vague speech-regulating statutes are problematic because of the chilling effect. Since Section 66A is presently being challenged before the Supreme Court, there is a great opportunity for the Court both to get rid of this unconstitutional law, as well as strengthen the foundations of our free speech jurisprudence.

Gautam Bhatia — @gautambhatia88 on Twitter — is a graduate of the National Law School of India University (2011), and presently an LLM student at the Yale Law School. He blogs about the Indian Constitution at http://indconlawphil.wordpress.com. Here at CIS, he blogs on issues of online freedom of speech and expression.