SC strikes down Sec 66A of IT Act, calls it unconstitutional

The Supreme Court on Tuesday quashed the controversial Section 66(A) of the Information Technology (IT) Act, which criminalizes “causing annoyance or inconvenience” online or electronically, stating that it violated the fundamental right to freedom of expression guaranteed to all citizens in Article 19(1) (a) of the Constitution.

The court said that the provision introduced in 2009 to the original Act of 2000, used expressions “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 120-page judgement emphasised.

This provision has been invoked to make several arrests in the past few years. Several petitions were moved in the Supreme Court on behalf of the victims and they were heard at length by two benches.

In the judgment written by Justice R F Nariman, the court clarified that though the right to freedom of expression is not absolute, the restrictions listed in Article 19 (2) did not save Section 66A. Restrictions can be justified only if there was a threat to public order or “clear and present danger”.

The court rejected the assurances of the government that it would apply the provision reasonably. The court said that the assurance of one government may not be kept by the successor government. It also rejected the contention of the government that Parliament is in the best position to understand and appreciate the needs of the people. Courts must presume the constitutionality of a legislation. “Mere possibility of abuse of a provision cannot be ground for invalidating a law,” it was argued by government counsel. But the court discussed all these defences and rejected them.

The Centre has been arguing that quashing 66A completely will not be right since it needs some mechanism to exercise some control over the content shared on the Internet, which can be subject to abusive and potentially damaging. After Tuesday's judgement, it is not clear if the government is left with any options.

"There is rule of law and rule by the law. The Supreme Court has shown that it is with the times, tech-savvy and ready to stand up and uphold the constitutional principles that make India the celebrated democracy. This is how Digital India will be made in India,” said Mishi Choudhary, executive director, Software Freedom Law Centre India. She is also the legal counsel of Faisal Farooqi, CEO of Mouthshut, which is one the parties contesting the provision.

The first Public Interest Litigation (PIL) against Section 66(A) was filed by a then 21-year-old 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.”

There were several incidents a few years ago, which sparked an outcry against the Section 66A. While the Maharashtra government arrested two girls in Palghar near Mumbai for criticizing on Facebook the shutdown in the city for Shiv Sena chief Bal Thackeray’s funeral, a businessman in Puducherry was arrested for comments made on Twitter against finance minister P. Chidambaram’s son Karti Chidambaram.

There was also an incident in which, Ambikesh Mahapatra, a professor of chemistry from Jadavpur University in West Bengal was arrested for posting a cartoon depicting chief minister Mamata Banerjee on a social networking site and an another one involving arrests of two Air India Ltd employees.

Post such incidents, the government strengthened the enforcement of the law by mandating that complaints under this Section can be registered only with the permission of an officer of or above the rank of deputy commissioner of police, and inspector general in metro cities.

Though the government has managed to curtail the number of arrests under 66(A) since then, champions of Internet continue to voice concerns against it, saying that it is being used by the politicians as a weapon to curb criticism online.