This judgment will govern the field for the next 50 years – Sajan Poovayya on the Section 66A judgment

The judgment of the Supreme Court scrapping Section 66A has received wide attention. Hailed as a landmark victory for freedom of speech and expression, the judgment authored by Justice Rohinton Fali Nariman has come in for praise from all quarters. .Bar & Bench spoke to Senior Advocate Sajan Poovayya who appeared for Rajiv Chandrashkehar in the case. Poovayya does not hide his excitement about the judgment which he considers a ‘Locus Classicus’. He opines that the judgment will govern the field for a long time to come and its impact on technology law will be profound. He also says that the judgment will change the way the international legal community perceives Indian courts when it comes to interpreting issues involving technology and law. .Bar & Bench: Were you expecting this outcome?.Sajan Poovayya: Absolutely! From the reactions of the Bench during the hearing, none of us had any doubt in whose favour the Court would decide. But the pleasant surprise is the way in which the judgment has been written. I think it could not have been more lucid and I salute the Bench. The judgment is more than the amalgam of all arguments made by the parties. The judgment shows a deep understanding of how technology works and a deep understanding of what technology lawyering is all about. In my view, this judgment is written for the posterity. The principles enunciated in this judgment will govern the field for the next 50 years or so. If a technology issue comes up for consideration again, this judgment will be used as Locus Classicus. We may not be there but I think the next generation will also reap the benefits of this judgment. Therefore, I think it is a fantastic judgment..B&B: You call yourself a “free speech lawyer”. What was your first reaction when the judgment was pronounced?.SP: I was a little sad that I was not here [in Delhi] to see the reaction of the Bench while pronouncing the judgment, particularly Justice Nariman’s reaction. But my first reaction was a feeling of pride. In the international legal circuit, whether it is the judiciary, academia or the legal profession, I think there was a feeling that Indian courts don’t understand technology or that they are a little too traditional and conservative in their approach when it comes to deciding technology matters and in their approach towards the interplay between law and technology. Unfortunately, some judgments which hitherto came from various courts in the country fuelled that feeling. All of those have vanished with this judgment and it has already made an enormous impact in the country..Interestingly, a lot of traditional political parties have agreed [to the judgment] which I think is the test for its correctness and acceptability. When your opponent agrees with you, there is nothing like it. Therefore, it is a feeling of great pride that it is our Supreme Court which has done it. And I also have this sense of fulfilment that many months of hard work put in for this case has paid off..B&B: One of your arguments was based on violation of Article 14. That has been turned down by the Supreme Court on the ground that there is an ‘intelligible differentia’ between online medium as opposed to print and Television. .SP: I completely agree with the opinion of the court on ‘intelligible differentia’ and why separate offences can be created for online medium. It is one thing for us to argue on a particular point in the court and another thing to look at how the opinion of the court has been rendered. I think there was something that all of us missed in our arguments in trying to drive home the point that there is no ‘differentia’ between communication on the electronic platform vis-à-vis communication on the physical domain; and that has been brought out very succinctly in the judgment..That said, I still think there is an issue which is open. It did not fall for consideration in this case but I hope it will come up for consideration soon – it is that even with the differentia being in existence can there be diametrically opposite treatments of communication on different platforms? Communication on an electronic platform may need tighter regulations than what are required for communication on the physical domain. But that does not mean that they can be treated inherently differently. I still don’t think you can make a legislation by which you criminalise a particular communication on the internet alone while the exact verbatim communication on other platforms is not criminalised..B&B: Coming to the Intermediary Rules, 2011, you had assailed Rules 3(2), 3(3), 3(4) and 3(7). In the end, the Court chose to read down only Rule 3(4). .SP: I think we should look at it a little more practically. During the hearing, a lot of time was spent on the parent enactment and comparatively lesser time on the Rules. I am a bit of traditionalist and I am modest when it comes to looking at our efforts. But, maybe we could have put in a bit more effort to place before the court, the exact indicators of how those rules really fall foul of the Constitutional ethos. I believe even those Rules must go and I feel that if the judges were given a little more of that information, maybe they would have struck down the Rules also. That said, I think it is more of an academic question today. This is because the unreasonable impact of those Rules has been watered down completely because of the ‘reading down’ of Section 79(3) and Rule 3(4)..B&B: The Court has discussed at length about the issue of vagueness of Section 66A. From the judgment, do you think vagueness in itself has been made out as a criterion for deciding the Constitutionality of a law with respect to Article 19 (1)(a) even if such law is saved by Article 19 (2)?.SP: No. I think what weighed in the minds of the Hon’ble judges is a combination of both. That is the kind of indicator you get when you see the judgment. However, I must say that this is one of those judgments which one should read again and again because every time you read it, there is a new perspective that will come up. This is because the thought process that has gone into the choice of words in the judgment and the manner in which the judgment flows is phenomenal. All of us will have to do a bit more of serious reading of the judgment before we come to any conclusion..However, there is some logic in this judgment that apart from the 19(2) argument, vagueness of the legislation itself can become a basis for unconstitutionality. If a law does not really give the citizen a clear indication by laying down that “you can go this far and no further”, it becomes a ground to challenge such a law. In addition to that, of course, Article 19(2) standards are something the law will have to meet. If a law does not meet the 19(2) standards, it will fall even if it is precise and not vague. But even if the law indirectly falls within the 19(2) bucket in any form, but is still very vague, I think the question of invalidity comes in and that seems to be Justice Nariman’s finding..B&B: How is technology law poised in India after this judgment?.SP: I think it is only on its way up. Again, it is a sense of great pride for me to say that I have been an officer of this court which has rendered this opinion. It is a matter of great pride for me that a judgment, which will stand out in the international parameters of any technological judgments, has come from the apex court of our country. If you look at the best ‘technology judgments’ that have come from European courts or US courts on internet regulation, I think this judgment will beat it all. I can’t think of why technology law will not be poised to grow and why it will not lead to entrepreneurship. I have always believed that innovations like Facebook, Google etc. have not happened in India not because we don’t have the technological skill set. We certainly have the technology skill set. What is lacking is that we don’t have the legal paradigm which initiates and incubates the thought process of entrepreneurship in technology. At every step, there is something which is actually scuttling your entrepreneurial zeal on the technology vertical. That starts with curtailing free speech. With this judgment, I think all of these will change. It will lead to entrepreneurship in technology and very soon we might have the Googles and the Facebooks or the “likes” getting incubated in our country..B&B: Why do you think this provision was inserted? Was it a necessity born out of any contingency or was it a political decision?.SP: We can only guess but my personal view is that it was due to sheer non-application of mind. I don’t think there was a political conspiracy or a political agenda behind it. Section 66A came into the statute book along with Sections 66B, 66C, 66D, 66E and 66F. But there is an absolute disconnect between section 66A and the other sections. It is the same set of legislators and the same parliamentarians who debated it and found it prudent to be added to the statute book. So, I think it was a sheer non-application of mind and also a complete lack of understanding on how technological platform works. Juxtaposition of how a physical domain activity works and putting it into technological domain as a transliteration and not as a translation might have caused this.