A Summary of the PUCL PIL filed in the Supreme Court challenging some provisions of the Information Technology Act, 2000 sent by Karuna Nundy, Advocate who along with Sanjay Parikh, National Vice-President appeared in the case:
By Karuna Nundy
Our criminal writ petition before the Supreme Court, `PUCL v. Union of India’ [W.P. (Crl) 199/2013] challenges provisions and Rules under the Information Technology Act, 2000 that criminalise and otherwise trammel (i.e. restricts or restrains) free speech. The petition submits a civil liberties balance on free speech and internet regulation.
Aligning the IT Act 2000 with the Constitution of India is an exercise of the utmost urgency as speech on the internet is being secretly and arbitrarily censored, private companies have been mandated to bar certain speech or face the consequences and citizens are being arrested and criminalized for speaking truth to power and “annoying” those who are able to move police to act against them.
Website Blocking Rules
The Website Blocking Rules [formally known as, the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009] give government vast censorship powers. They allow the Department of Information Technology of the central government to secretly censor speech on the internet, without providing reasons for censorship and without informing the person who has written or uploaded the content.
The unreasonably secretive procedure for banning websites do not, in addition, meet the natural justice standards for book banning under section 95 of the CrPC; e-books may thus be banned easily and secretively, immune to legal challenge as compared with their paper counterparts.
The petition seeks parity between blocking of websites and banning of books.
Intermediary Rules
The Intermediary Rules are formally known as the Information Technology (Intermediaries Guidelines) Rules, 2011. They govern the relationship between users and those who mediate internet access for users – such as Google, Yahoo, Facebook et al but also Airtel, MTNL, or the owner of a blog who hosts external content.
In their present form the Rules require intermediaries to take down content that is not prohibited anywhere else. In fact the terms are not defined anywhere, so intermediaries are required to take down internet content that is, by their own reckoning, “grossly harmful”, “blasphemous”, “invasive of another’s privacy”, “ethnically objectionable”, “disparaging” etc or face civil or criminal consequences.
Section 66A
As we speak, any writing or speech that is “annoying” or “inconvenient” and is written or spoken on the internet (private emails included) or via SMS on a cellphone can send the writer/speaker to jail for upto three years. The offence is cognizable, so people “annoyed” or “inconvenienced” (among other things) need only persuade a police officer of their feeling under the law. The Central Government’s only response to a series of legally reasoned petitions to them has been to kick the decision higher up the chain of police personnel i.e. they now require senior police officers to certify that speech is indeed annoying, inconvenient or falls within some of the other permissible categories to initiate criminal proceedings against a writer or speaker.
The consequences of this have brought the blunderbuss of the criminal law down on the lives of citizens.
Prof. Ambikesh Mahapatra of Jadavpur University and his ill, elderly friend, Subrata Sengupta are still facing criminal trial for emailing a cartoon based on Satyaji Ray’s tale for children “Sonar Kella” to a group of their neighbours. The FIR against them was filed by someone who did not even receive the email, but took offence on behalf of the Chief Minister Mamata Bannerjee. The offence of defamation would never be satisfied as Section 499 of the Indian Penal Code contains exceptions under which an act of parody/ satire would clearly qualify. As such the trial is carrying on only under the vague and undefined section 66A of the IT Act.
The PUCL’s petition seeks that speech be more freely allowed, and be fairly regulated by law only when constitutionally reasonable, under the ‘golden triangle’ of rights Article 19, 14 and 21.
On 22.11.2013 a bench of Justice R.M. Lodha and Justice Shiva Kirti Singh issued notice on our petition. A large number of citizens are now looking to the Peoples’ Union of Civil Liberties to reinstate free speech on the new technological platforms.
Karuna Nundy, Advocate, Supreme Court of India