Section 66A of Information Technology Act, 2000 is unconstitutional for being vague and struck down [Read Judgment]

After two months of gripping arguments, the Supreme Court today declared as unconstitutional, one of the most intensely debated statutory provisions of late – Section 66A of the Information Technology Act, 2000.
Section 66A of Information Technology Act, 2000 is unconstitutional for being vague and struck down [Read Judgment]

After two months of gripping arguments, the Supreme Court today declared as unconstitutional, one of the most intensely debated statutory provisions of late – Section 66A of the Information Technology Act, 2000 (Shreya Singhal v Union of India)

After the drama of SEBI Sahara, a great part of which played out in courtrooms 6 and 7 of the Supreme Court, the focus was back in those very court rooms thanks to nine petitions which were clubbed and heard by a Division Bench presided by Justice Chelameswar.

The alleged draconian rule which was used to arrest citizens and non citizens, laymen and activists attracted the ire of the Indian public and the controversy reached the apex court of India in no time. The first case in the Supreme Court, which was filed in late 2012 by law student Shreya Singhal, was quickly followed by a slew of petitions. Aside from Section 66A, Section 69A and Intermediary guidelines made under Section 79 of the Act were also challenged.

The matter was initially heard by a Division Bench comprising Justice Jasti Chelameswar and Justice SA Bobde. When the Court reopened after the winter vacation, the Bench stood changed and Justice Rohinton Nariman was on the Bench along with Justice Chelameswar with the result that the part-heard matter had to be heard afresh.

Justice Jasti Chelameswar
Justice Jasti Chelameswar

The Judgment

The pronouncement began with Justice Nariman remarking that,

“This is the longest pronouncement from a person who otherwise likes to keep it short.” The pronouncement went on for a good fifteen minutes in a jam-packed courtroom 3 of the Supreme Court. In its 120 page judgment, the Court held that Section 66A is not saved by the reasonable restrictions enunciated under Article 19 (2) of the Constitution and is, therefore, violative of freedom of speech and expression guaranteed by Article 19(1)(a). The judgment begins with the Court accepting the contention of the petitioners that any information which is disseminated through internet is covered by Section 66A and that Section 66A creates an offence against persons who use the internet and annoy or cause inconvenience to others.

“Information of all kinds is roped in – such information may have scientific, literary or artistic value, it may refer to current events, it may be obscene or seditious. That such information may cause annoyance or inconvenience to some is how the offence is made out.

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 Section 66A.”

The Court, then, proceeds to test whether such restrictions on freedom of speech is permissible under the Constitution, particularly Article 19 (2). Beginning its discussion with the three basic concepts which are fundamental to the understanding of freedom of speech, the Court states that:

“There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Distinguishing between ‘discussion’, ‘advocacy’ and ‘incitement’, mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, etc.”

It then considered the object of the Section (as argued by the Centre) to maintain “public order” and proceeded to hold that the Section does not have any proximate relation to the object sought to be achieved.

“We have to ask ourselves the question: does a particular act lead to disturbance of the current life of the community or does it merely affect an individual leaving the tranquility of society undisturbed? Going by this test, it is clear that Section 66A is intended to punish any person who uses the internet to disseminate any information that falls within the sub-clauses of Section 66A…It will be immediately noticed that the recipient of the written word that is sent by the person who is accused of the offence is not of any importance so far as this Section is concerned. The Section makes no distinction between mass dissemination and dissemination to one person. Further, the Section does not require that such message should have a clear tendency to disrupt public order…The nexus between the message and action that may be taken based on the message is conspicuously absent…On all these counts, it is clear that the Section has no proximate relationship to public order whatsoever.”

The Court, therefore, held that “Section 66A has no proximate connection with incitement to commit an offence”, and, hence, is not protected by Article 19 (2).

“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 eight subject matters under Article 19(2) must, therefore, fall foul of Article 19(1)(a), and not being saved under Article 19(2), is declared as unconstitutional.”

The Court also dealt at length with the vagueness of the language of Section 66A and held that the same renders the Section “unconstitutionally vague”. It also observed that the Section can have a “chilling effect” on free speech due to its vague expressions which can be subject to wide interpretation.

“..the expressions used in 66A are 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…There is no demarcating line conveyed by any of these expressions – and that is what renders the Section unconstitutionally vague.

A certain section of a particular community may be grossly offended or annoyed by communications over the internet by “liberal views” – such as the emancipation of women or the abolition of the caste system…. Each one of these things may be grossly offensive, annoying, inconvenient, insulting or injurious to large sections of particular communities and would fall within the net cast by Section 66A…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 Court also turned down the submission of Additional Solicitor General Tushar Mehta that the government will administer the Section carefully and cautiously, on the ground that,

“If Section 66A is otherwise invalid, it cannot be saved by an assurance from the learned Additional Solicitor General that it will be administered in a reasonable manner. Governments may come and Governments may go but Section 66A goes on forever. 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.”

The Court, however, upheld the Constitutionality of Section 69A, which empowers the government to block websites in the interest of the security of the State. It also upheld Section 79 of the Act and the Information Technology (Intermediary Guidelines) Rules, 2011 (Intermediary Rules) framed under Section 79. It, however, read down Section 79 (3) (b) and Rule 3(4) of the Intermediary Rules to the effect that an intermediary will be liable only if a court order has been passed directing “take down” of the content.

“Section 79(3)(b) has to be read down to mean that the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material. This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not.

Rule 3(4) needs to be read down in the same manner as Section 79(3)(b).”

The Court also struck down the Constitutional validity of Section 118(d) of the Kerala Police Act on the same grounds applicable to Section 66A.

Interestingly, the Court accepted the submission of the Centre that separate offences can be made out as far as free speech through internet is concerned and held that there is an “intelligible differentia” between the medium of print, broadcast and real live speech as opposed to speech on the internet.

“The intelligible differentia is clear – the internet gives any individual a platform which requires very little or no payment through which to air his views. The learned Additional Solicitor General has correctly said that something posted on a site or website travels like lightning and can reach millions of persons all over the world.”

For the above reason, the Court repelled the challenge on the ground of Article 14.

The Provisions

Section 66A reads as follows:

Section 69A is given below.

Section 79 is given below.

History – Timeline

Below is a timeline of the significant events leading up to the dispute before the Supreme Court and the details of the hearing that concluded in the Supreme Court last week.

October 17, 2000: Information Technology Act, 2000 comes into force.

October 27, 2009: Amendments to IT Act, 2000 comes into force including insertion of Section 66A.

April 13, 2011: Information Technology (Intermediary Guidelines) Rules, 2011 comes into force.

October 30, 2012: Puducherry base businessman Ravi Srinivasan arrested for posting on twitter about then Finance Minister P Chidambaram’s son Karthick Chidambaram.

November 19, 2012: Two girls, Shaheen Dhada and Rinu Shrinivasan, arrested in Maharashtra for Facebook posts criticising the shut sown in Mumbai following the death of Shiv Sena Supremo Bal Thackarey. While Shaheen had updated her Facebook status, Rinu had liked the status prompting police arrest on a complaint by a local Shiv Sena leader.

November 29, 2012: A Public Interest Litigation filed by one Shreya Singhal challenging the Constitutionality of Section 66A is mentioned before the then Chief Justice Altamas Kabir who agrees to hear the matter the next day. Senior Advocate, the current Attorney General, Mukul Rohatgi appears for Singhal.

November 30, 2012: Supreme Court issues notice to Central government and Maharashtra government in the PIL filed by Shreya Singhal.

December 16, 2013: Taslima Nasrin moves Supreme Court against registration of FIR for allegedly offensive tweets.

December 17, 2014: Supreme Court issues notice in Taslima Nasrin’s plea; Directs Uttar Pradesh government not to take any coercive action.

January 9, 2013: Central government issues advisory guidelines pursuant to the directions of the Supreme Court. The said guidelines mandate that an arrest under Section 66A can be made only with the prior approval of the Inspector General of Police in a metropolitan area and Deputy Commissioner of Police or Superintendent of Police at the district level.

March 4, 2013: Supreme Court issues notice to Centre and State of Maharashtra in a PIL seeking framing of regulations and guidelines for effective investigation of cyber crimes. The PIL is filed by one Dilipkumar Tulsidas Shah who was wrongly arrested for a fake Facebook profile which somebody else had created. The matter is tagged along with Shreya Singhal’s petition.

May 12, 2013: Lawyer and Hyderabad based PUCL activist Jaya Vindyala arrested for Facebook post against Congress MLA Amanchi Krishna Mohan and Tamil Nadu Governor K Rosaiah.

May 16, 2013: Interim application filed by Shreya Singhal praying for the release of lawyer and PUCL activist Jaya Vindyala comes up for hearing. While Vindyala had already been released on bail, Court orders States to comply with the Central government’s advisory guidelines.

December 9, 2014: Final hearing in the various petitions challenging Section 66A and other provisions of the IT Act commences before a Bench of Justice Jasti chelameswar and Justice SA Bobde.

January 13, 2015: Bench stands changed as Justice SA Bobde is replaced by Justice Rohinton Fali Nariman; final hearing starts afresh.

February 26, 2015: Judgment reserved by the Supreme Court.

March 20, 2015: Supreme Court issues notice to the Uttar Pradesh government in interim application challenging the arrest of a school student for allegedly defamatory posts about UP minister Azam Khan

The Lawyers

The following lawyers made oral submissions before the Supreme Court in the matter.

Read the full judgment below.

Shreya Singhal v Union of India

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