ON March 24, when the Supreme Court Bench comprising Justices J. Chelameswar and R.F. Nariman delivered the judgment declaring Section 66A of the Information Technology (I.T.) Act unconstitutional, it was not just the lead petitioner in the case, Shreya Singhal, a 24-year-old law student, who felt elated. There were nine other petitioners in the case who stood vindicated: Common Cause, a non-governmental organisation; Rajeev Chandrasekhar, Member of Parliament; the late Dilip Kumar Tulsidas Shah (an industrialist from Pune who was arrested for an alleged cybercrime, and who died during the hearing of the case); the People’s Union for Civil Liberties, a human rights organisation; Mouthshut.com; the writer Taslima Nasrin; Manoj Oswal, an animal rights activist from Pune; the Internet and Mobile Association of India, and M.K. Anoop. Besides, the judgment pleased millions of users of social media, who felt their empowerment had finally been confirmed.
The 122-page judgment written by Justice Nariman is a lucid exposition of why freedom of expression is an essential aspect of democracy and why restraints sought to be imposed on its exercise must be based on firm grounds.
The case had its origin in 2012 when two 21-year-old girls, Shaheen Dhada and Rinu Shrinivasan, in Palghar town in Thane district of Maharashtra, were arrested for a Facebook post criticising the shutdown in Mumbai during Shiv Sena chief Bal Thackeray’s funeral. Although they were granted bail, and the charges against them were dropped subsequently, the arrests created a nation-wide uproar against the abuse of Section 66A against citizens using social media to express dissent. In the wake of this outrage, the Supreme Court admitted the petitions of Shreya Singhal and others for a detailed hearing on the constitutionality of Section 66A and other related provisions of the I.T. Act. As the hearing continued, more cases of abuse of Section 66A by various State governments, resulting in the arrests and harassment of citizens using social media to express dissent, were reported in the media.
Section 66A was inserted in the I.T. Act, 2000, through an amendment, after the second United Progressive Alliance government came to power in 2009. The provision, titled “Punishment for sending offensive messages through communication service, etc.”, said:
“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; or (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.”
An explanation attached to this provision said apart from information and messages, created, transmitted or received on a computer, or a communication device, the provision would also include in its ambit attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.
In its judgment, the Supreme Court held that Section 66A infringed on the fundamental right to free speech and expression and was not saved by any of the eight grounds covered in Article 19(2) of the Constitution. These are reasonable restrictions on the freedom of expression in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
In particular, the court held that the expressions “the causing of annoyance, inconvenience, etc.” as found in Section 66A were outside the purview of Article 19(2). The Bench made it clear that under India’s constitutional scheme, it was not open to the state to curtail the freedom of speech to promote general public interest.
The Narendra Modi government made a futile attempt to defend the law by arguing before the court that a relaxed standard of reasonableness of restriction should apply considering the fact that the Internet as a medium of speech differed from other media on several grounds.
The court agreed that there is an intelligible differentia (a distinguishing characteristic) having a rational relation to the object sought to be achieved—that there can be creation of offences which are applied to free speech over the Internet alone as opposed to other mediums of communication. But the court did not find any justification to relax the court’s scrutiny of the curbing of the content of free speech over the Internet. While it may be possible to narrowly draw a section creating a new offence, relatable only to speech over the Internet, the validity of such a law will have to be tested on the basis of the tests evolved by it, the Supreme Court held.
The main problem with Section 66A was that it did not require that an “offensive” message should have a clear tendency to disrupt public order. The section had no proximate relationship to public order whatsoever. Mere annoyance need not cause disturbance of public order, the court suggested. The court also ruled that Section 66A had no proximate connection with incitement to commit an offence.
The court found it difficult to accept the Modi government’s proposal, through the Additional Solicitor General (ASG), that the court should read down Section 66A rather than quash it altogether. The court said: “The ASG is asking us not to read down Section 66A, but for a wholesale substitution of the provision which is obviously not possible.”
Relying on the United States Supreme Court’s view that a legal provision which creates an offence and which is vague must be struck down as being arbitrary and unreasonable, the Bench found that every expression in Section 66A was 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. The expression ‘persistently’ is completely imprecise. There is no demarcating line conveyed by any of these expressions—and that is what renders the section unconstitutionally vague,” the Bench observed.
The expressions “grossly offensive” or “menacing” in the section are so vague that there is no manageable standard by which a person can be said to have committed an offence or not to have committed an offence, it said. Section 66A is unconstitutional as 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, therefore, have to be struck down on the grounds of overbreadth, the Bench found.
When the government promised the court that Section 66A would be administered in a reasonable manner, the court said that an assurance from the present government, even if carried out faithfully, would not bind any successor government and, therefore, the section must be judged on its own merits without any reference to how well it may be administered.
Section 69A spared
In the course of the judgment, the court upheld a similar challenge to Section 118 of the Kerala Police Act, which it declared as unconstitutional. The court, however, spared Section 69A of the I.T. Act (regarding power to issue directions to block for public access any information through any computer resource), which was also under challenge by many petitioners. Unlike 66A, Section 69A is a narrowly drawn provision with several safeguards, the court found. Similarly, the court rejected the challenge to the I.T. Rules 2009.
Section 79 (3) of the I.T. Act makes intermediaries liable in certain cases of commission of unlawful acts. The court upheld this provision, subject to reading down Section 79(3)(b) 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 19(2) are going to be committed, fails to expeditiously remove or disable access to such material. Rule 3(4) I.T. Intermediary Guidelines Rules, 2011, also must be read down in the same manner, the court held.
An observer said that henceforth, non-governmental actors would have to obtain court orders instead of directly sending takedown notices to intermediaries, and this, she said, was very promising.
Chinmayi Arun, an expert on cyberlaw, said: “The judgment is a tour de force in free speech jurisprudence since it emphasises that the government can only restrict speech in very narrow contexts.”