In a historic judgment, the Supreme Court of India has struck down the controversial Section 66A of the Information Technology Act, 2000 declaring it as violative of Article 19(1)(a) of the Constitution which gives right to freedom of speech and expression to every citizen of India.

Earlier in 2012, Shreya Singhal, a 21 year old student had filed a Public Interest Litigation (PIL) in the Supreme Court challenging the said section under which two girls were arrested over facebook social media post on Mumbai Band post Bal Thackeray’s Death.

The said section 66A provides for punishment by way of imprisonment of three years (maximum) for sending offensive messages through computers or communication devices.

The Apex Court also ruled that the said section 66A is not covered under Article 19(2) of the Constitution of India which empowers States to make a law imposing reasonable restrictions on the citizens right to freedom of speech and expression.

Case Details:
Writ Petition (Criminal) No. 167/2012
Shreya Singhal ....Petitioner   vs.   Union of India .....Respondent
Date of Judgment: 24-03-2015
Coram: R. F. Nariman, J; J. Chelmeswar J

Details of the Judgment:

Apart from challenging the constitutional validity of the section 66A, the contentions of the petitioners were that Section 66A sufferred from the vice of vagueness causing innocent people booked in arbitrary and whimsical manner. Also, since the said section talked of a particular communication medium and did not cover written or spoken means, it was discriminatory of Article 14 of the Constitution related to Equality before Law.

The Court maintained that freedom of speech and expression were important as a cardinal value in a democracy. The Court also explained that the content of the expression of “freedom of speech and expression” consists of three fundamental concepts. First “discussion”, second  “advocacy”, and third “incitement” and the restrictions imposed by Article 19(2) comes into play only when discussion or advocacy reaches the level of incitement.

The Court cited a number of American judgments of U. S. Supreme Court  and its own previous judgments and pointed out that though both the US and India protect the freedom of speech and expression as well as press freedom, the American decisions putting a restrictions on the freedom are inapplicable in terms of Article 19(1) (a) or (b) of Indian Constitution which precisely define the grounds of restrictions.

While elaborating on Section 2(v) of Information Technology Act, 2000 which defines “information”, the Court said that the definition is inclusive one but it did not refer to what the content of information can be. It refers only to the medium through which such information is disseminated. The Court agreed with the petitioners that the public’s right to know is directly affected by Section 66A.

The Court while examining the section 66A in terms of Article 14 commented that there can not be creation of offences which are applied to free speech over the internet alone as opposed to other mediums of communication.

Regarding “reasonable restrictions” the court, citing its earlier judgments emphasised that “legislation which arbitrarily or excessively invades the right could not be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19(1)(g) and the social control permitted by clause (6) of article 19, it must be held to be wanting in that quality.”

Regarding the contention of the State that Section 66A can be supported under the heads of public order, defamation, incitement to an offence and decency or morality, the Court reiterated its earlier stand that it is not open to the State to curtail freedom of speech to promote the general public interest. The Court held that the Section 66A had no proximate relationship to public order whatsoever and mere `annoyance’ need not cause disturbance of public order. the Court concluded that the said section 66A had no element of any tendency to create public disorder which ought to be an essential ingredient of the offence which it created.

The Court pointed that injury to reputation is a basic ingredient for something to be qualified as defamatory and section 66A does associate itself with injury to reputation. “Something may be grossly offensive and may annoy or be inconvenient to It is clear therefore that the Section is not aimed at defamatory statements at all.”

The Court also concluded that the Section 66A has nothing to do with “incitement to an offence”. According to the Court, the information could be of a nature of purely “discussion” or “advocacy” of a “particular point of view”. Also, the mere causing of annoyance, inconvenience, danger etc., or being grossly offensive or having a menacing character are not offences even under the Penal Code. Similarly what may be grossly offensive or annoying under the Section need not be obscene at all.

Regarding the contention of the petitioner that section 66A is vague, the court pointed out that “none of the expressions used in Section 66A are defined. Even “criminal intimidation” is not defined -and the definition clause of the Information Technology Act, Section 2 does not say that words and expressions that are defined in the Penal Code will apply to this Act.”

The Court, in its judgment, under the heading “Chilling Effect And Overbreadth” dwelled upon the vagueness of the section as under:

“Information that may be grossly offensive or which causes annoyance or inconvenience are undefined terms which take into the net a very large amount of protected and innocent speech. A person may discuss or even advocate by means of writing disseminated over the internet information that may be a view or point of view pertaining to governmental, literary, scientific or other matters which may be unpalatable to certain sections of society. It is obvious that an expression of a view on any matter may cause annoyance, inconvenience or may be grossly offensive to some. A few examples will suffice. A certain section of a particular community may be grossly offended or annoyed by communications over the internet by “liberal views” – such as the emancipation of women or the abolition of the caste system or whether certain members of a non proselytizing religion should be allowed to bring persons within their fold who are otherwise outside the fold. Each one of these things may be grossly offensive, annoying, inconvenient, insulting or injurious to large sections of particular communities and would fall within the net cast by Section 66A. In point of fact, Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.”

Apart from examining the constitutional validity of section 66A of the IT Act, 2000, the Court also examined the procedural unreasonableness aspect of the Section in terms of the Section 118 of the Kerala Police Act, Section 69A and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 and Section 79 and the Information Technology (Intermediary Guidelines) Rules, 2011.

Finally, the Court held as under:

(a)   Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2).

(b)   Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid.

(c)   Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material. Similarly, the Information Technology “Intermediary Guidelines” Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment.

(d)   Section 118(d) of the Kerala Police Act is struck down being violative of Article 19(1)(a) and not saved by Article 19(2).

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