Striking down Section 66A of the Information Technology Act is a landmark day for freedom of speech and expression
In a first-ever verdict in India on the right to freedom of speech on the internet, the Supreme Court has struck down Section 66A of the Information Technology (IT) Act, a provision which has been widely misused by the police to justify arrests of web users for allegedly posting “offensive” content on social media platforms such as Facebook and Twitter.
Stating that Section 66A was vaguely worded and allowed its misuse by the police, the Court said such a law hit at the root of liberty and freedom of expression. “The Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would have to be struck down on the ground of overbreadth,” it ruled, while upholding the validity of Section 69B and the 2011 guidelines that allowed the government to block websites if their content had the potential to create communal disturbance, social disorder or affect India’s relationship with other countries.
The ruling comes in the wake of numerous complaints of harassment and arrests, sparking public outrage. The first PIL on the issue was filed in 2012 by law student Shreya Singhal, who sought amendment in Section 66A of the Act, after two girls—Shaheen Dhada and Rinu Shrinivasan—were arrested by Mumbai police as one of them posted a comment against the shutdown in the city following Shiv Sena leader Bal Thackeray’s death and the other “liked” it. Even Jadavpur University professor Ambikesh Mahapatra was arrested by the West Bengal police for sharing cartoons on Mamata Banerjee. Some other cases that made news included arrest of free speech campaigner Aseem Trivedi for displaying cartoons that mocked Parliament, and the arrest of two Air India cabin crew members for allegedly posting indecent jokes about the PM and for insulting the national flag. Recently, a class 11 student was arrested for making a Facebook post about UP minister Azam Khan. Another man was arrested in Puducherry for tweeting that Karti Chidambaram, son of then union minister P Chidambaram, was “corrupt”.
The petitions challenged the constitutionality of the law on grounds that terms “illegal”, “grossly offensive” and “menacing character” were vague expressions and likely to be misunderstood and abused.
The government opposed the petitions, saying the Section didn’t suppress free speech and expression. Though the IT Act 2000 was amended in 2008 and this provision was inserted by the UPA government, the NDA also sided with the poorly drafted provision by saying it cannot be “quashed” merely because of the possibility of its “abuse”.
Welcoming the judgement, former AG Soli Sorabjee, who appeared for one of the petitioners, termed the judgment as a “glorious vindication” of the right to free speech. “The judgment is well researched, well reasoned and erudite in expression,” he said.
Ramesh Vaidyanathan, managing partner, Advaya Legal, said the decision “assumes significance when seen in the light of the increased encroachment of civil liberties and abuse of power by governments in the interest of national security, public order and applying antiquated rules to a dynamic medium of communication like the internet.” He added: “It remains to be seen if the BJP brings in legislation to nullify the judgment.”
Supporting Vaidyanathan’s view, Antony Alex, CEO, myLaw.net, an online legal education platform, said “the Court has once again come to the rescue of the Indian citizen. The provision has often been misused by governments. Section 66A is a dangerous provision that has no place in a healthy and vibrant democracy where an individual has the freedom to express views, freely without fear of persecution.”
Besides legal experts, leaders from across the political spectrum also hailed the order. Nalin Kohli, a spokesperson for the ruling BJP, said it was a “landmark day for freedom of speech and expression” as Article 19 of the Constitution on freedom of expression had been reaffirmed.
Congress spokesman Manish Tewari said the Court has done the “right and appropriate thing” by striking down the provision. “It had become an instrument of oppression. It put too much of power in the hands of law enforcement authorities to persecute and hound people who maybe innocuously or intentionally indulged in dissent,” he said, adding “mere law enforcement or knee-jerk reactions, as was the implementation of Section 66A, cannot be a solution to curb freedom of speech.”
The government will now have to insert a new section in the Act with clear wordings to reflect the offence which may be permissible restrictions within the ambit of Article 19 and the IPC, according to experts. Since the Court has not struck down two other provisions that permit the government to block sites, this could give the government some teeth in the event it needs to act. “This change will hopefully ensure that the government will use its powers to ban content, but sparingly,” Alex added.