Utkarsh Anand
The Indian Express

IN a landmark judgment expanding the contours of free speech to the Internet, the Supreme Court struck down Tuesday the much abused Section 66A of the Information Technology Act which authorised police to arrest people for social media posts construed “offensive”or “menacing”.

Calling it “open-ended and unconstitutionally vague”, the bench of Justices J Chelameswar and Rohinton F Nariman said nothing short of quashing the law “in its entirety” could suffice since Section 66A “arbitrarily, excessively and disproportionately” invaded the right to free speech, right to dissent, right to know, and had a “chilling effect” on constitutional mandates.

“As Section 66A severely curtails information that may be sent on the Internet based on whether it is grossly offensive, annoying, inconvenient, etc, and being unrelated to any of the subject matters under Article 19(2) must, therefore, fall foul of Article 19(1)(a), and is declared as unconstitutional and void,” the bench ruled while allowing a clutch of petitions, including one by law student Shreya Singhal who first approached the top court in November 2012.

Article 19(1)(a) gives people the right to speech and expression whereas 19(2) accords the state the power to impose “reasonable restrictions” on exercise of this right for reasons like interest of the sovereignty and integrity of the country, security of the state, friendly relations with foreign states, public order, decency or morality, defamation or incitement to an offence.

Testing the validity of Section 66A on the grounds mentioned under Article 19 (2) for curbing the right to free speech, the court said this law had “no proximate relationship to public order” and failed to pass the muster of the “clear and present danger” test.

It also struck down a similar law in Kerala: “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)”
“…what has been said about Section 66A would apply directly to Section 118(d) of the Kerala Police Act, as causing annoyance in an indecent manner suffers from the same type of vagueness and over breadth, that led to the invalidity of Section 66A, and for the reasons given for striking down Section 66A, Section 118(d) also violates Article 19(1)(a) and not being a reasonable restriction on the said right and not being saved under any of the subject matters contained in Article 19(2) is hereby declared to be unconstitutional,” it said.

The bench, however, upheld the government’s power to create separate offences for the cyber world and declared as constitutional Sections 69A and 79(3)(b), under which blocking orders and take-down notices are issued to websites to remove certain objectionable content in accordance with guidelines. The court said the guidelines provided necessary safeguards.

Underlining the supremacy of the right to freedom of speech and expression, the court said that under the constitutional scheme, it was not open to the state to curtail this right even to promote general public interest.

An assurance by the NDA government to the court that Section 66A — it was brought into the statute by the UPA-II in 2009 — will be administered in a reasonable manner also failed to impress the bench, which said that governments may come and go but Section 66A will go on forever and, what is otherwise invalid, cannot be saved by assurances.

“An assurance from the present government even if carried out faithfully would not bind any successor government. It must, therefore, be held that Section 66A must be judged on its own merits without any reference to how well it may be administered,” it said, ruling that Section 66A was unconstitutional and failed to qualify under the umbrella of “reasonable restriction”.

In its 123-page judgment, the court also upheld the right to dissent on the Internet. It underlined that Section 66A was cast so widely that virtually any opinion on any subject would be covered by it. “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,” the bench held.

Section 66A empowered police to make arrests over what policemen, in terms of their subjective discretion, could construe as “offensive”or “menacing” or for the purposes of causing annoyance, inconvenience, etc. It prescribed the punishment for sending messages through computer or any other communication device like a mobile phone or a tablet, and a conviction could fetch a maximum of three years in jail.

Over the years, the police invoked this provision to arrest several people, including a cartoonist, a professor, students and industrialists, more particularly when they posted contents against politicians. Many of these instances were cited in the batch of petitions filed in the court for getting the provision quashed.

Allowing the petitions, the court said that Section 66A upset the balance between right to free speech and the reasonable restrictions that may be imposed on this right.
“The petitioners are right in saying that Section 66A, in creating an offence against persons who use the Internet and annoy or cause inconvenience to others, very clearly affects the freedom of speech and expression of the citizenry of India at large in that such speech or expression is directly curbed by the creation of the offence contained in this section,” it said.

The court said Section 66A was unconstitutionally vague since neither a prospective offender nor the authorities who are to enforce this law had any “manageable standard” to book a person and the terms like “offensive” or “menacing” used in this section were nowhere defined in the Act.

It maintained that Section 66A made no distinction between a mere discussion or advocacy of a particular point of view which may be annoying or inconvenient or grossly offensive to some, and incitement by which such words lead to an imminent causal connection with public disorder, security of state etc.

“What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another. When it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme,” it said.

According to the bench, Section 66A did not not concern itself with injury to reputation or with incitement to commit an offence or with decency or morality since an offensive post did not require to be affecting any of these grounds mentioned under Article 19 (2).

It also dismissed the government’s plea to read it down and to add certain clauses to Section 66A by interpretation in order to save its constitutionality, saying what they wanted a substitution of the entire provision.

 ‘Liberty of thought and expression a cardinal value’
* Section 66A quashed in entirety for being unconstitutional, void and vague
* Invades right to free speech arbitrarily, excessively and disproportionately
* Liberty of thought and expression a cardinal value of paramount significance
* Govt cannot curb right to free speech even to promote general public interest
* Section 66A cannot be said to be “reasonable restriction” on right to speech
* Govt assurance on administering the law well cannot protect Section 66A

http://indianexpress.com/article/india/india-others/supreme-court-strikes-down-section-66a-says-it-violates-right-to-speech/