Monday, April 20, 2015

Insight into incitement

Advice - Rights and Laws, Apr '15
By Kaushik Gupta

Reader queries

While striking down Section 66A of the Information Technology Act, 2000 on March 24, 2015, the Supreme Court said that freedom of speech and expression has three components – discussion, advocacy of a cause and incitement, and that only incitement should be punishable. But how does one differentiate between the three? And if Section 66A is gone, how will incitement be dealt with?
Anonymous, Kolkata

Section 66A was not there in the original Information Technology Act, 2000. It was subsequently incorporated and was effective from October 27, 2009. The section reads as follows:

“66A. Punishment for sending offensive messages through communication service, etc.

Any person who sends, by means of a computer resource or a communication device –

(a) any information that is grossly offensive or has menacing character, or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages

shall be punishable with imprisonment for a term which may extend to three years and with fine.

Explanation – For the purpose of this section, terms ‘electronic mail’ and ‘electronic mail message’ means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.”

It has been held by the Supreme Court of India that Section 66A in its entirety is violative of Article 19(1)(a) of the Constitution of India, which speaks of the Fundamental Right to Freedom of Speech and Expression. Moreover, Section 66A is not protected by Article 19(2), which speaks of reasonable restrictions being imposed upon the freedom of speech and expression.

Article 19 reads as follows (relevant excerpts only):

“19. Protection of certain rights regarding freedom of speech etc
(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business

(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence . . ."

Article 19(2) speaks of restriction on “incitement to an offence”. The term ‘incitement’ in its ordinary parlance means “the action of provoking unlawful behaviour or urging someone to behave unlawfully” ( Therefore, though expressing one’s view, whether through discussion or advocacy of a cause, is protected by freedom of speech, the Constitution does not protect the instigation or provocation of an offence. One can freely speak against the policies of the government in a democratic manner but cannot incite the people to take up arms to overthrow an elected government. Such incitement will be deemed to be sedition and hence punishable under law.

The striking down of Section 66A does not mean that the Right to Freedom of Speech and Expression is unbridled. That right is still subject to the restrictions under Article 19(2), which not only attempts to protect the sovereignty of the State but also prevents us from going against “public order, decency or morality”, which, however, is not clearly defined under any statute and remains vague except for being interpreted by the courts from time to time.

Kaushik Gupta is a lawyer by profession, a photographer by passion, and happy to answer your queries on legal matters around gender and sexuality. Write in your queries to, and they will be answered with due respect to confidentiality.

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