Here Today, Gone Tomorrow. Supreme Court strikes down Section 66A of the IT Act [Read the Judgment]

The Supreme Court today declared Section 66A of the Information Technology Act, 2000 as unconstitutional. The judgment was delivered by the Division Bench consisting of Justices J. Chelameswar and R.F. Nariman.

The judgment, authored by Justice Nariman notes that the batch of petitions before the Court "raise  very important and far-reaching questions relatable primarily to the fundamental  right  of  freespeech and expression guaranteed by Article 19(1)(a)  of  theConstitution of India."

Perusing the Section 66A and other provisions challenged in the petitions, the Apex Court notes the contentions made by the petitioners, it notes, "very basis of Section 66A- that it has given rise to new forms of crimes - is incorrect, andthat Sections 66B to 67C and various Sections of the IndianPenal Code (which will be referred to hereinafter) are goodenough to deal with all these crimes."

Out of various grounds for the Constitutional challenge to the provision, the Counsel of the Petitioner submitted, "first and foremost Section 66A infringes the fundamentalright to free speech and expression and is not saved by any ofthe eight subjects covered in Article 19(2)." It was also submitted, "Section  66A  suffers  from  the  vice  of  vaguenessbecause unlike the offence created by Section 66 of the sameAct,  none of  the aforesaid terms  are even  attempted to bedefined and cannot be defined, the result  being that innocentpersons  are  roped  in  as  well  as  those  who  are  not.  Suchpersons are not told clearly on which side of the line they fall;and it would be open to the authorities to be as arbitrary andwhimsical as they like in booking such persons under the saidSection.  In fact, a large number of innocent persons have beenbooked and many instances have been given in the form of anote to the Court."

It was also contended by the petitioners, "their  rights  underArticles  14  and  21  are  breached  inasmuch  there  is  nointelligible differentia between those who use the internet andthose who by words spoken or written use other mediums ofcommunication.  To punish somebody because he uses a particular  medium of  communication is itself  a discriminatoryobject and would fall foul of Article 14 in any case."

Additional  Solicitor General  Tushar  Mehta defended  the  constitutionality  of  Section  66A and submitted that legislature is in the best position to understand and  appreciate  the  needs  of  the  people. He also added, "Mere possibility of abuse of a provision cannot be a ground to declare a provision invalid. Loose language may have been used in Section 66A to dealwith novel methods of disturbing other people's rights by using the internet as a tool to do so.  Further, vagueness is not aground to declare a statute unconstitutional if the statute is otherwise legislatively competent and non-arbitrary."

The Supreme Court in its judgment also went through the number of judgments the parties to the case had relied upon. After the same, the judgment notes, "This leads us to a discussion of what is the content of theexpression "freedom of speech and expression".   There arethree  concepts  which  are  fundamental  in  understanding  thereach  of  this  most  basic  of  human  rights.   The first isdiscussion, the second is advocacy, and the third is incitement."

The Supreme Court also noted the difference in law regarding free speech in the US and India, it said, "It is significant to notice first the differences between the US First Amendment and Article 19(1)(a) read with Article 19(2). The first important difference is the absoluteness of the U.S first Amendment – Congress shall make no law which abridges the freedom of speech. Second, whereas the U.S.  First Amendment speaks of freedom of speech and of the press, without any reference to "expression", Article 19(1)(a) speaks of freedom of  speech and expression without  any reference to"the press". Third, under the US Constitution, speech may be abridged, whereas under our Constitution, reasonable restrictions may be imposed.  Fourth,  under  our  Constitution such restrictions have to be in the interest of eight designated subject matters - that is any law seeking to impose a restriction on  the  freedom  of  speech  can  only  pass  muster  if  it  is proximately related to any of the eight subject matters set out in Article 19(2)."

The Supreme Court then expressed its opinion regarding each difference. It said, "In so far as the first apparent difference is concerned, the U.S.  Supreme  Court  has  never  given  literal  effect  to  the declaration  that  Congress  shall  make  no  law abridging  the freedom  of  speech." It added, "So far as the second apparent difference is concerned,the American Supreme Court has included "expression" as part of freedom of speech and this Court has included "the press" as being covered under  Article 19(1)(a),  so that,  as a matter of judicial  interpretation,  both  the  US  and  India  protect  thefreedom of speech and expression as well  as press freedom. In so far  as  abridgement  and  reasonable  restrictions  are concerned, both the U.S. Supreme Court and this Court  have held  that  a  restriction  in  order  to  be  reasonable  must  be narrowly tailored or  narrowly interpreted so as to abridge or restrict  only  what  is  absolutely  necessary.  It  is  only  when it comes  to  the  eight  subject  matters  that  there  is  a  vast difference. In the U.S.,  if  there is a compelling necessity to achieve  an  important  governmental  or  societal  goal,  a  law abridging freedom of speech may pass muster.  But in India, such law cannot pass muster if it is in the interest of the general public.  Such law has to be covered by one of the eight subject matters set out under Article 19(2).  If it does not, and is outside the pale of 19(2), Indian courts will strike down such law."

Dealing with different aspects of the constitutional challenge, the Court in relation to Article 19 observed, "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 inthat  such  speech  or  expression  is  directly  curbed  by  the creation of the offence contained in Section 66A."

Regarding reasonable restrictions, i.e. Article 19 (2) the Apex Court observed that the "State has claimed that the said Section can be supported under the heads of public order, defamation, incitement to an offenceand decency or morality." Relying on Sakal Papers (P)  Ltd.  & Ors. v.Union of India, [1962] 3 S.C.R. 842 and The Superintendent,  Central  Prison,  Fatehgarh v.Ram Manohar  Lohia, [1960]  2  S.C.R.  821, the Supreme Court observed, "We have to ask ourselves the question: does a particular act lead to disturbance of the current life of thecommunity or  does it  merely affect  an individual  leaving the tranquility of society undisturbed?"

The Court also noted, "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. Such message need not have any potential which could disturbthe community at large.  The nexus between the message andaction  that  may  be  taken  based  on  the  message  is conspicuously absent – there is no ingredient in this offence of inciting anybody to do anything which a reasonable man would then say would have the tendency of being an immediate threat to public safety or tranquility.  On all these counts, it is clear that the  Section  has  no  proximate  relationship  to  public  order whatsoever. The example of a guest at a hotel `annoying' girlsis telling – this Court has held that mere `annoyance' need not cause disturbance of public  order.   Under Section 66A, the offence is complete by sending a message for the purpose ofcausing annoyance, either `persistently' or otherwise without in any manner impacting public order."

The Supreme Court also discussed the Clear and present danger test, and said, "Viewed  at  either  by  the  standpoint  of  the  clear  andpresent danger test or the tendency to create public disorder,Section 66A would not pass muster as it has no element of anytendency  to  create  public  disorder  which  ought  to  be  anessential ingredient of the offence which it creates."

Regarding the aspect of Defamation, the Court noted, "It  will  be noticed that  for  something to be defamatory,injury to reputation is a basic ingredient.  Section 66A does not concern  itself  with  injury  to  reputation.  Something  may  be grossly  offensive  and  may  annoy  or  be  inconvenient  to somebody without  at  all  affecting his  reputation.   It  is  clear therefore  that  the  Section  is  not  aimed  at  defamatory statements at all."

Regarding Decency or Morality and Incitement to an offence, the Court found no proximate connection with Section 66A.

Regarding the aspect of vagueness, the Supreme Court relied on Collins Dictionary and also US judgments which say that a law must be struck down if its vague. The Supreme Court also said, "it  is  important  to  notice  the  distinction  between  the Sections 268 and 66A.   Whereas, in Section 268 the various expressions used are ingredients for  the offence of  a public nuisance,  these  ingredients  now  become  offences  in themselves  when  it  comes  to  Section  66A.   Further,  under Section 268, the person should be guilty of an act or omission which is illegal in nature – legal acts are not within its net.  Afurther ingredient is that injury, danger or annoyance must be to the public  in general.   Injury, danger or annoyance  are not offences by themselves howsoever made and to whomsoever made."

It also said, "very expression used is nebulous in meaning.  What may beoffensive to one may not be offensive to another. What may cause annoyance or inconvenience  to  one  may  not  causeannoyance or inconvenience to another.  Even the expression"persistently" is completely imprecise – suppose a message issent thrice, can it be said that it was sent "persistently"?  Doesa message have to be sent (say) at least eight times, before itcan be said that such message is "persistently" sent?  There isno demarcating line conveyed by any of these expressions –and that is what renders the Section unconstitutionally vague."

However, regarding the aspect of vagueness, the Additional Solicitor General submitted that expressions that are used in Section 66A may be incapable of any precise definition but for that reason they arenot constitutionally vulnerable.

However, not accepting the contentions put forward by the Government, the Court observed, "it is clear that Section 66A arbitrarily, excessively  and disproportionately invades the right of free speech and upsetsthe balance between such right and the reasonable restrictionsthat may be imposed on such right."

The Court also refused the assurance given by the ASG that the government will not misuse the provision by observing, "An assurance from the present Government even if carried out faithfully would not bindany 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."

Regarding the aspect of severability, the Court observed, "Section66A does not fall within any of the subject matters contained inArticle 19(2) and the possibility of its being applied for purposesoutside those subject matters is clear.  We therefore hold thatno part of Section 66A is severable and the provision as awhole must be declared unconstitutional."

The Apex Court also dwelved into the question of Article 14 and said, "when  we  come  to discrimination under  Article 14, we are unable to agree with counsel for the petitioners that there is no intelligible differentia between the medium of print, broadcast and real live speech asopposed 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."

It also said, "We make it clear that there is an intelligible differentia between speech on the internet and other mediumsof communication for which separate offences can certainly becreated by legislation.  We find, therefore, that the challenge onthe ground of Article 14 must fail."

The Supreme Court also opined on the aspect of Procedural Unreasonableness. It said, Having struck down Section 66A on substantive grounds, we need not decide the procedural unreasonableness aspect ofthe Section.

Section 118(d)  of  the Kerala Police Act was also struck down, the Court said, "what has been said about Section 66A wouldapply directly to Section 118(d)  of  the Kerala Police Act,  ascausing  annoyance  in  an  indecent  manner  suffers  from thesame  type  of  vagueness  and  over  breadth,  that  led  to  theinvalidity of Section 66A, and for the reasons given for strikingdown Section 66A, Section 118(d) also violates Article 19(1)(a)and not being a reasonable restriction on the said right and notbeing  saved  under  any  of  the  subject  matters  contained  inArticle 19(2) is hereby declared to be unconstitutional."

Regarding Section 69A and the Information Technology (Procedureand Safeguards for Blocking for Access of Information byPublic) Rules, 2009 the Court observed, "Merely because certain additional  safeguards  such  asthose found in Section 95 and 96 CrPC are not available doesnot make the Rules constitutionally infirm. We are of the viewthat the Rules are not constitutionally infirm in any manner."

The Court also said "Section 79 is valid subject to Section 79(3)(b) being read down 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 Article 19(2) are going to be committed then failsto expeditiously remove or disable access to such material. Similarly,  the  Information  Technology  "Intermediary Guidelines" Rules, 2011 are valid subject to Rule 3 sub-rule(4)  being read down in the same manner as indicated in thejudgment."

With both 66A and Supreme Court trending on Twitter, many persons have come out and supported the judgment delivered by the Apex Court.

The youth was arrested in relation to the Azam Khan post said, "I am very happy and grateful to SC". Ambikesh Mahapatra, who was arrested over Mamta Banerjee cartoons to expressed happiness and said, "Victory for common man, democratic & human rights of people has been protected."

Rinu Srinivasan, who was arrested over a post relating to Balasaheb Thackrey said, "My post did not have any abusive content, people must feel free to express their opinion." She added, "I am feeling very happy, I have got justice after two years."

Interestingly, the Congress party, which was in power when 66A was introduced, supported the judgment and said that the provision was antithesis of freedom of speech and expression. The BJP, which had opposed the provision when it was in Opposition but its Government stood in support before the Supreme Court, too expressed its happiness and said that it is not in favour of curtailing dissent and honest criticism on the social media.

Shreya Singhal, who had filed a PIL after the arrest of two girls in relation to the Balasaheb post too expressed happiness and said, "SC has upheld citizens' right of freedom of speech & expression." She added, "No one should fear not putting something up due to a fear of Jail" and "There are other provisions in IT act, if there is a hate speech, you will be dealt under those provisions."

The only different take came from Shivsena, Sanjay Raut, a senior leader of the party said, "Social media does have positive impact, but it's also being misused, police must have some powers in their hands."

Livelaw's comprehensive coverage on S. 66A available here.

Read the Judgment here.