Is it becoming the new Section 66A?

Madhurika Durge and Karan Kamath

Click here for part I

Brave New Words

Section 66A of the Act was struck down in Shreya Singhal v. Union of India (“Shreya Singhal”) because no offence can be legislated, so as to a cast a (quoting the United States Supreme Court in United States v. Reese):‘net large enough to catch all possible offenders and leave it to the Court to step in and say who could be rightfully detained and who should be set at liberty’. Analyzing the aforesaid cases, the similarities between Sections 66A and 67 are uncanny as the latter also permits unnecessary executive intrusion on individual rights until the judiciary steps in. Both these Sections use unclear terminologies to establish the appearance of a crime when there may or may not exist one. Summarily, their words mean nothing, and therefore, everything. It is not that at the trial stage, a judge cannot see the hollowness of an unwarranted prosecution under such vague wordings. Instead, the unpleasantness of these provisions lies in the chilling effect on freedom of expression that they enable via harassment and vexation.

Furthermore, Section 66A was struck down because it did not define exactly what is prohibited and hence it defied the presumption that every person is allowed to steer themselves between lawful and unlawful conduct. This intensified the problem in a two-fold manner. Firstly, it delegated the policy matters to policemen, judges, and juries due to which the law ended up being subjectively and arbitrarily applied. Secondly, it also trampled upon the freedoms enshrined under Article 19 as citizens ended up steering far wider of the unlawful zone. Section 67 of the Act ought to be struck down for the same reasons, as it has been persistently used to subject innocuous people to unnecessary prosecution. There is already a considerable body of constitutional law that deems such provisions inconsistent with our cherished constitutional principles.

Vagueness and obscenity

The Supreme Court in Shreya Singhal, held that laws restricting freedom of speech will be void for vagueness, and for failing to provide ‘manageable standards’ of imposed restrictions. This was subsequently interpreted to mean that any offence created without providing reasonable standards to define the guilt of the accused would be arbitrary and unconstitutional. It can be argued that the standards of ‘obscenity’, as existent in law today, fail to provide any manageable standard for determining guilt under Section 67. It categorically uses words that have been outlawed as permissible standards; and employment of any other prevalent standard would be barred for contradicting Constitutional morality.

The early common law test of ‘obscenity’ was laid down by the Queen’s Bench Division in 1968, in R v. Hicklin as:

‘[W]hether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall’.

The similarity with some part of Section 67 is inescapable:

‘…or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it…’.

The overarching understanding of ‘obscenity’ in Hicklin was initially accepted by the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra. However, Indian law has moved towards a more libertine approach since. In Director General of Doordarshan v. Anand Patwardhan, for example, the Court observed that Hicklin was the only test of ‘obscenity’ available in India. Then, without categorically rejecting it, the Court laid down a three-step test akin to the contemporary community standards test applied by the United States Supreme Court in Miller v. California: Firstly, whether an average person, applying community standards would find the work, taken as a whole, as something which appeals to the prurient interest; Secondly, whether the work contains, ‘in a patently offensive way, sexual conduct specifically defined by the applicable state law’; and lastly, whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Soon, the Court would specifically reject Hicklin in Aveek Sarkar v. State of West Bengal, accepting the test in Anand Patwardhan. This test is distinct from Hicklin, for it considers the yardstick of an average person using ‘contemporary standards’ as opposed to ‘those whose minds are open to such immoral influences’. This, by itself, renders the quoted portion of Section 67 constitutionally untenable. The application of that provision solely rests on:

            ‘…any material which is lascivious or appeals to the prurient interest…’

The authors argue that even ‘contemporary community standards’ is a vague phrase, incapable of being precisely defined. In a country as diverse as India, it is impossible to find a uniform ‘community’ let alone such community’s contemporary standard of obscenity being applied nationwide. (See Case v. Minister of Safety and Security; and Luke Records, Inc. v. Navarro)

For laws that regulate the publication of films or books or advertisements or other such representations limited by geography, perhaps a community may be identifiable, based on the targeted consumers. However, in cyberspace, that geographical distinction is further blurred.

Additionally, the Apex Court has advocated the use of constitutional morality. In the case of Navtej Singh Johar v. Union of India, the Court held that Constitutional courts ought to determine the constitutionality of statutes on well-established principles and held:

‘[I]t is expected from the courts as the final arbiter of the Constitution to uphold the cherished principles of the Constitution and not to be remotely guided by majoritarian view or popular perception. The Court has to be guided by the conception of constitutional morality and not by societal morality.’ (para 119)

This was elucidated further by D. Y. Chandrachud, J. in his concurring opinion in Joseph Shine v. Union of India, laying down that law cannot be guided by ‘common morality’ of the state at any point in history, but rather by ‘constitutional morality’.

As the contemplations of societal morality are not to govern adjudications of constitutionality, the contemporary community standards test falls foul of constitutional morality. Any contemporary community standard is bound to be a societal perspective of ‘obscenity’, which is distinct from the right-based constitutional approach advocate in the cases aforementioned. As societies and communities differ, so do their notions of what is acceptable conduct and what is a frail attempt to offensively promote lasciviousness and prurient interests.

Intrusion on the Right to Privacy

In its landmark judgment on privacy in K. S. Puttaswamy v. Union of India, (“K.S. Puttaswamy”) the Supreme Court held that intimate personal choices, such as reproduction or faith or attire, even when showcased in public, were aspects of spatial privacy of an individual, entitled to Constitutional protection. Similarly, Joseph Shine, while declaring the colonial law criminalising adultery unconstitutional, Misra, CJ, expounded:

‘A woman cannot be asked to think as a man or as to how the society desires. Such a thought is abominable, for it slaughters her core identity.’ (para 1)

If the notion and standards of ‘obscenity’ or ‘lasciviousness’ are applied from a societal viewpoint, they unnecessarily penetrate the spatial privacy of a woman. The similar can be said vis-à-vis a man. As recording or documenting allegedly obscene material is so inherently connected to Constitutionally protected spatial privacy, any limitation casted by the state ought to pass the triad of requirements applied to Article 21 that of legality, necessity, and proportionality. (See K. S. Puttaswamy)

For passing the test, Section 67 would have to be necessary, i.e. defined in the terms of a legitimate State aim; and would have to possess justifiable proportionality, viz. a rational nexus between objects and means. The modification of Section 67 and enhancement of penalties alongside other amendments to the Act that took place in 2008, are coupled with a remark in the Objects and Reasons of the amending legislation:

‘A rapid increase in the use of computer and internet has given rise to new forms of crimes like publishing sexually explicit materials in electronic form, video voyeurism and breach of confidentiality and leakage of data by an intermediary, e-commerce frauds like personation commonly known as Phishing, identity theft and offensive messages through communication services. So, penal provisions are required to be included in the Information Technology Act, the Indian Penal Code, the Indian Evidence Act and the Code of Criminal Procedure to prevent such crimes.’

The focus of the amendment was inter alia on ‘publishing sexually explicit materials.’ This trades violation of individual privacy and intrusion of the executive in personal lives, against a vaguely defined objective that is premised on vague terminologies and unreliable social mores. It has been held by the Supreme Court in K. A. Abbas v. Union of India that ‘sexual’ and ‘obscene’ are neither interchangeable words nor synonyms. Although tracing obscenity can be a legitimate State aim, it cannot be equalled to unnecessarily intruding on all material that is ‘sexual’. This is not to suggest that the phrase ‘publishing sexually explicit materials’ does not include anything that is culpable. Arresting the spread of material containing child pornography, bestiality, sexual violence, etc. is a necessary and legitimate State aim. A broken clock is accurate twice a day, nonetheless, that does not mean it ought not to be repaired. Although the objective of Section 67 encompasses some material that is offending, that by itself cannot be used to justify instances where its imprecise ambit tramples upon freedom of speech and individual privacy.

Conclusion

Section 67 conflicts considerably with the Constitution, inter alia by failing to protect victims of privacy breaches, using inexact terminologies, being founded on imprecise standards, and intruding on individual privacy. The overall impact of its shortcomings is glaringly visible in its inappropriate implementation.

It needs serious reconsideration in the form of drafting that incorporates a synthesis of the Anand Patwardhan test with the considerations of Constitutional morality. For example, the portion of the test which justifies criminalisation of material that uses outlawed conduct in an obviously offensive manner; or categorical language like that of Section 67B, specifically identifying the material to be criminalised, would be constitutional, considering the conduct would be precisely defined in law. While there is a pressing need to control immoral transactions in the cyberspace, Section 67 is far too expansive for precisely focussing itself on that goal. If a statute has a discord between liberty and justice, then the statute does not represent either, and a free society ought not to perpetuate such laws.

Madhurika and Karan are 2020 graduates in B.A. LL.B. (Hons), from Symbiosis Law School, Pune.

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