Supreme Court terms Sec 66A of IT Act unconstitutional, Sec 69A and 79 remain with certain restrictions

Freedom of speech has a historic day in India today as the apex judicial body, Supreme Court, declared Section 66A of the IT Act unconstitutional, ruling against the Central government which had defended the Section. A bench comprising of J Chelameswar and R F Nariman said, "The public's right to know is directly affected by Section 66A of the Information Technology Act."

“Liberty of thought and expression is of cardinal importance and it must be upheld,” said the bench. Reading the landmark judgement, Justice Nariman said that there are “three aspects of freedom of expression: discussion, advocacy and incitement.”

Only when discussion and advocacy reach the level of incitement, Article 19 (2) (of the Constitution of India), which entails reasonable restrictions on freedom of speech can be enforced.

The first PIL on Section 66A was filed in 2012 by a law student Shreya Singhal, who sought an Amendment after two girls, Rinu Shrinivasan and Shaheen Dhada, were arrested in Palghar in Mumbai. One of them had posted a comment against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray's death and the other 'liked' it. Some other people who have come under the axe for the same include UP-based cartoonist Aseem Trivedi.

Elaborating the grounds for holding the provision as “unconstitutional”, the bench said terms like “annoying”, "inconvenient" and "grossly offensive", used in the provision are vague as it’s difficult for the law enforcement agency and the offender to know the ingredients of the offence.

The judgment reads: “What may be offensive and annoying to one may not be to another. That is what renders 66A unconstitutional and vague. Governments come and governments go, the law persists. And the law must be judged on its own merit. 66A is invalid and it cannot be saved even if the government says it won’t abuse the law,” the bench added.

Section 69A provides power to law enforcement agencies to issue directions to block public access of any information through any computer resource, and Section 79 provides for exemption from liability of intermediary in certain cases.

The bench also referred to two judgements of UK courts which reached different conclusions as to whether the material in question was offensive or grossly offensive.

The Supreme Court upheld Section 69 which allows the government to block websites in its entirety. However, the bench added that it needs to be read down, and a court order or a government order needs to be taken, which essentially means intermediary needs a court/government order for pulling down content from a website.

In a landmark judgment today, the bench also rejected the assurance given by the NDA government during the hearing that certain procedures may be laid down to ensure that the law in question is not abused. "Governments come and go but Section 66A will remain forever," the bench said.

Section 66A of the IT Act has been termed as Draconian by many internet activists and experts around the country and is in direct conflict with freedom of speech which is one of the fundamental rights under Article 19 of the Constitution. This Section has been misused a lot owning to its vague definition. Some of the words in the definition of this Section can be interpreted in more ways than one leading to its misuse.

Section 66A provides for 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.

The Internet is abuzz with the news and people have been celebrating throughout with the hashtag #SEC66A trending at top position in India. Pranesh Prakash, Policy Director at Center for Internet Society, India, tweeted, "While the case is about 'Internet' censorship, the SC judgment is against ALL censorship."

While Mishi Chaudhary, Legal Director at SFLC (Software Freedom Law Center) tweeted, "Justice Nariman replaces all Indian cricketers, filmstars, you are our Youth Icon #No66A , Bonus points for quoting Shakespeare."

Full copy of the judgement can be downloaded from here.