Apex court speaks up for free speech

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New Delhi/bengaluru | Published: March 25, 2015 1:13:47 AM

Quashes Section 66A of IT Act; Centre, users hail move

In a landmark judgment on the right to freedom of speech on the internet, the Supreme Court on Tuesday quashed the controversial Section 66A of the Information Technology (IT) Act that empowered the police to make arrests over contentious posts online and on social media, saying the law violated people’s fundamental rights to speech and freedom of expression guaranteed in Article 19(1)(a) of the Constitution.
A bench of justices

J Chelameswar and Rohinton F Nariman held the provision was “unconstitutional”, noting it had to be struck down in its entirety. In the court’s view, the provision had no proximate relationship with the public order and lacked defined criteria on its exercise. The bench, however, upheld that intermediaries be made liable for removing objectionable content on being notified by the government.

The provisions under Section 79(3)(b) says an intermediary such as Facebook or YouTube is liable to face punishment in case it does not censor material the government or any third party complains about and the intermediary has no opportunity to be heard if some content has to be taken down or withdrawn.

Now under the Supreme Court judgement, these provisions have been withdrawn and this section will be replaced with regulations of Article 19(2) of the Constitution which guarantees freedom of expression but with certain restrictions. It essentially means there will be no difference in the applicability of the laws on freedom of expression whether it is offline or online.

In its 120-page order, the court noted that the provision, introduced in 2009 to the original Act of 2000, used expressions that were “completely open-ended and undefined”. Every expression used is “nebulous” in meaning. “What may be offensive to one may not be offensive to another.

What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another. Even the expression ‘persistently’ is completely imprecise,” the judgment read.

The court observed that Section 66A adversely impacted people’s right to know and didn’t make any distinction between advocacy and discussion on the one hand and incitement on the other. The court rejected the Centre’s plea that the section could be read down and that the authorities will make sure the law is administered well.

“Governments may come and governments may go, but Section 66A will always remain on the statute… Whatever is otherwise invalid cannot be held to be valid by making a statement that it will be administered well,” the bench noted. The court held that Section 66A could not be seen as a “reasonable restriction” on an individual’s right to speech and expression.

The government, which had defended the constitutional validity of Section 66(A), on Tuesday said there can be no parallel between its stand and that of the previous UPA regime which tried to make it “an instrument to curb dissent, satire and anything else which did not suit it”.

Communications and IT minister Ravi Shankar Prasad said if the security establishment feels there is a need to consider certain aspects in the light of the order, these shall be considered in a proper structured way with due safeguards so that the constitutional rights are not frustrated.
The government respects the freedom of speech and expression, he said. “We fully support the freedom of speech. Those in government must be tolerant. We will work on fresh guidelines of this Act and take it forward  once we get the feedback from the security agencies,” said the minister.

Prasad said the government welcomed the court order, adding that when the UPA government had come out with “draconian” provisions under Section 66(A), the BJP had opposed it.

The first public interest litigation (PIL) against Section 66(A) was filed by a student, Shreya Singhal, in 2012. Her petition had stated that “the phraseology of Section 66(A) of the IT Act, 2000, is so wide and vague and incapable of being judged on objective standards, that it is susceptible to wanton abuse and, hence, falls foul of Article 14, 19 (1)(a) and Article 21 of the Constitution”. Singhal also argued that “unless there is judicial sanction as a prerequisite to the setting into motion the criminal law with respect to freedom of speech and expression, the law as it stands is highly susceptible to abuse and for muzzling free speech in the country”.

On Tuesday, the court rejected the assurances of the government that it would apply the provision reasonably, pointing out the assurance of one government may not be upheld by its successor. It also rejected the government’s contention that Parliament is in the best position to understand and appreciate the needs of the people and that the mere possibility of abuse of a provision cannot be the grounds for invalidating a law. In the judgment written by Nariman, the court clarified that though the right to freedom of expression is not absolute, restrictions can be justified only if there was a threat to public order or “clear and present danger”.

Internet experts point out that social media platforms like Facebook and Twitter can no longer be held responsible for posts. Internet and Mobile Association of India (IAMAI) president Subho Ray said the judgment strengthens the safe harbour provisions for intermediaries contained in Section 79 of the IT Act. “It is especially helpful to smaller companies like Mouthshut.com who will now not be harassed by the government and they cannot asked to withdraw the posts. The judgment will ensure freedom on the internet, allow intermediaries to do business freely, thereby ensuring more innovation and investment in the Indian internet sector,” he said.

“The Supreme Court’s reading down of the provision under Section 79(3)(b) will now make it necessary to take legal permission from a court to take down any content with the exception that the government can still issue orders to block access to websites under 69A rules. This will reduce liability on intermediaries and will go a long-way in setting up a free, fair and independent ecosystem,” Nasscom said in a statement.

Nasscom president R Chandrashekar added, “The IT Act has well served the objective to provide the legal framework for data security and internet laws in the country. The changes enabled by the Supreme Court judgment would provide a much-needed boost to the citizens of the country and help the objective of a digitally connected India.”

Antony Alex, CEO, myLaw.net, an online legal education platform, felt that Section 66 A has no place in a healthy and vibrant democracy.

“India’s demography is fast changing and a large part of our population is youth who spend considerable amount of time online. Even sharing a post could land a person in trouble,” Alex pointed out.

Seven cases of alleged abuse

* Youth held for ‘objectionable’ Facebook post against Samajwadi Party leader Azam Khan
* FIR against author Taslima Nasreen on cleric’s complaint
* Two girls arrested for Facebook post questioning ‘Bal Thackeray shutdown’ of Mumbai
* Political cartoonist Aseem Trivedi charged with sedition
* Kerala local CPI(M) worker arrested for abusive Facebook comments against Modi
* Kerala Police cyber cell arrests two for email showing CPI(M) politburo member and state secretary Pinarayi Vijayan’s ‘mansion’
* Jadavpur University professor Ambikesh Mohapatra arrested for Mamata Banerjee cartoon

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