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SC Strikes Down Section 66A As Unconstitutional!

Published on Tue, Mar 24,2015 | 20:52, Updated at Tue, Mar 24 at 20:52Source : 

By: Payaswini Upadhyay, CNBC-TV18

9 petitions, one prayer- strike down Section 66A of the Information Technology Act, 2000 as unconstitutional on grounds that- “Section 66A infringes the fundamental right to free speech and expression and is not saved by any of the eight subjects covered in Article 19(2)….the causing of annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will are all outside the purview of Article 19(2).  Further, in creating an offence, Section 66A suffers from   the vice of vagueness because unlike the offence created by Section 66 of the same Act,   none of the aforesaid terms are even attempted to be defined and cannot be defined, the result being that innocent persons are roped in as well as   those who are not. Such persons are not told clearly on which side of the line they fall; and it would be open to the authorities to be as arbitrary and whimsical as they like in booking such persons under the said Section.  

Today, the Supreme Court largely agreed with the petitioners as it said- “it is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right…. In point of fact, Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as 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 Supreme Court also examined Section 79 of the Information Technology Act, 2000 and the Information Technology (Intermediary Guidelines) Rules, 2011. The Section and Rules deal with the liability of intermediaries and due diligence to be observed by them. The Supreme Court read down Section 79(3)(b)  of the Act to say- “It must first be appreciated that Section 79 is an exemption provision. Being an exemption provision, it is closely related to provisions which provide for offences including Section 69A. We have seen how under Section 69A blocking can take place only by a reasoned order after complying with several procedural safeguards including a hearing to the originator and intermediary… The intermediary applying its own mind to whether information should or should not be blocked is noticeably absent in Section 69A read with 2009 Rules…. 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.”

‘The Firm’ Team gets some quick reactions from Senior Advocates and domain experts.  

KK Venugopal
Senior Advocate, Supreme Court
“It is a strong leap forward for the purpose of upholding freedom of expression in its most pristine form’

Indira Jaising
Senior Advocate
Former Additional Solicitor General, SC
“It is a very welcome judgment and it is important to reiterate the right to dissent in the context where any difference of opinion with the government is treated as anti national as happened in the Priya Pillai case. Although the judgment refers to Section 66A and relates to dissemination of speech of the internet, the ruling applies equally to all forms of expression including spoken words, print media or books.”

Anil Divan
Senior Advocate, Supreme Court
“It is an outstanding and excellent judgment and shows a depth of scholarship and erudition which does credit to our Supreme Court”

Raju Ramachandran
Senior Advocate, Supreme Court
“It is an important judgment upholding the freedom of speech. It reassures us that the Supreme Court, in spite of some aberrations, continues to be the sentinel on the qui vive to protect the citizens’ fundamental right. The court’s judgment on Section 79 is also important because it protects the rights of intermediaries for them to do business without uncertainty.”  

Apar Gupta
Partner, Advani & Co.
“It’s a promising decision which recognizes that the Internet is delivering the full promise of freedom of speech and expression to millions of Indians today. Though, certain prayers with respect to blocking require further safeguards and transparency, positive statements from the Government indicate that a conversation maybe initiated on these issues as well. Further issues of surveillance will inevitably come up before the court in the future, which will define the scope of liberty for internet users in India.”  

The Government’s Take!

Ravi Shankar Prasad
Union Minister- Telecom & IT
“The Union Government welcomes Hon’ble SC’s decision on 66A. When the UPA Govt came out with draconian provisions under 66A, BJP in opposition firmly opposed it and said that ’66 is unacceptable in current form’. BJP resolutely stood up against the censorship and blocking on social media done by UPA Govt.

Once in Govt, it took its opposition to the draconian provisions of 66A on record in Court Proceedings. New Affidavits filed by NDA Govt in Hon’ble Supreme Court clearly show the marked difference in the approach from UPA Govt.

NDA Govt, in what can be dubbed as a landmark moment in India’s Internet history, has accorded the same amount of freedom of speech and expression that a citizen of India is granted in normal life under our constitution by our founding fathers.

After detailed discussion with the Central Government at the highest possible level, the Central Government filed an Affidavit before the Hon’ble Supreme Court making its stand absolutely clear that the Government respects the freedom of speech and expression.  The relevant paragraphs are verbatim quoted:

A.      “This counter affidavit is being filed only for the purpose of assisting this Hon’ble Court and to satisfy this Hon’ble Court that the impugned Sections of the IT Act neither seeks to curtail nor the Central Government desires any interpretation which seeks to curtail any of the fundamental rights guaranteed to the citizens including the right under Article 19(1)(a) i.e. fundamental right to free speech and expression.  

B.      This counter affidavit seeks to point out the necessity and desirability of the provisions which are challenged in these petitions and to bring it on record that the usage of cyber space either by social media or otherwise is not even remotely intended to be curtailed either totally or partially at instance of Union of India.

C.     Central Government encourages beneficial use of cyber space and the Act only seeks to regulate the use of cyberspace which would fall within any of and/ or all categories stipulated under Article 19(2) of the Constitution of India.

D.     That the penal provisions of the Act can never be interpreted so as to take within its sweep political debate, any form of honest decent, decent humour, political satire etc.  With a view to avoid possibility of any misconstruction of the expressions used in the penal provisions of the Act, the Central Government has prepared an advisory / guidelines to be strictly followed by law enforcement agencies which would ensure that the honest and legal use of cyber space does not result into any harassment to any citizen of the country.”

Thus in a layman’s language, the Government absolutely respects the right to freedom of speech and expression on social media and has no intention of curbing it. Only reasonable restrictions apply on social media, as they do in routine normal day to day life in the physical world under Article 19 (2) of the constitution of India. We will have to understand that we cannot set a different standard of Public Morality for Speech & Expression in Cyberspace from Speech in other mediums and in the Public Domain.

It is important to understand that Section 66A is in several parts and only a portion of it deals with issues which can raise question of freedom of speech and expression.

During the course of oral submissions also, it was categorically pointed out that the Central Government shares the anxiety that expressions like “grossly offensive” etc. referred above may be abused at some local level.  The Central Government, therefore, requested the Hon’ble Supreme Court that the said expressions be read confined to Article 19(2) of the Constitution only and to ensure that no right of any citizen is scuttled, the said phrases be narrowly tailored by the Hon’ble Supreme Court itself to obviate any possibility of any abuse of any law enforcing agency to scuttle the free speech and expression of the citizens.

There can be no parallel of our stand on this matter with that of the previous UPA regime. We have in writing confirmed that we stand for freedom of speech and expression, while the previous UPA Govt tried to make this law an instrument to curb dissent, satire and anything else which did not suit it. “

I have myself set an example by standing up for free speech and rights of a teenager recently arrested at the complain of Azam Khan for posting on Twitter and Facebook.”

The Opposition’s Take!  

P Chidambaram
Congress Leader
“I welcome the judgement of the Supreme Court holding that Section 66A of the IT Act is unconstitutional. The section was poorly drafted and was vulnerable.  It was capable of being misused and, in fact, it was misused. There could be a case of misuse of the freedom of speech. In such cases, the ordinary laws should apply and the offender should be dealt with under those laws.  If some provisions of the law have to be strengthened, that could be considered. But Section 66A was not the answer.”  

For a quick background on Section 66A controversy, read/watch The Firm’s coverage here. The full text of the Supreme Court order is available here.


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