NEW DELHI: The Supreme Court of India has struck down Section 66A of the Information Technology Act in India, that made posting offensive content” online a crime punishable by jail.
In the landmark ruling, the two-judge bench of Justices J Chelameswar and Rohinton F Nariman held the provision to be unconstitutional and said it had to be struck down in its entirety, as the law hit at the root of liberty and freedom of expression, the two cardinal pillars of democracy.
The judgement has been widely welcomed as a victory for free speech in India.
In November 2012, the apex court had expressed concern over a spate of incidents involving arrests of people for posting alleged offensive messages on websites. A bench headed by Chief Justice Altamas Kabir had said that it was considering to take suo motu cognisance of such incidents and wondered why nobody had so far challenged Section 66A of the IT Act. The bench then agreed to hear a Public Interest Litigation (PIL) filed by a Delhi law student Shreya Singhal on an urgent basis. The petitioner had contended in her plea that “the phraseology of Section 66A 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.”
She has submitted 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.
Three year on, reading out the judgement in the case, on Tuesday, 24 March, justice RF Nariman said Section 66A is unconstitutional and we have no hesitation in striking it down. He said, The public’s right to know is directly affected by section 66A of the Information Technology Act.”
Elaborating the grounds for holding the provision as “unconstitutional”, the bench said terms like “annoying”, “inconvenient” and “grossly offensive”, used in the provision are vague as it is difficult for the law enforcement agency and the offender to know the ingredients of the offence.
The bench also referred to two judgments of separate UK courts which reached different conclusions as to whether the material in question was offensive or grossly offensive.
“When judicially trained minds can reach on different conclusions” while going through the same content, then how is it possible for law enforcement agency and others to decide as to what is offensive and what is grossly offensive, the bench said, adding, “What may be offensive to one person may not be offensive to the other”.
The court rejected the Centres plea that the Section could be read down and that the authorities will make sure the law is administered well. The court said, Government may come and government may go but Section 66A will always remain on the statute whatever is otherwise invalid cannot be held to be valid by making a statement that it will be administered well.
The bench also said the provision had no proximate relationship with public order and lacked defined criteria on its exercise. It said the law didnt make any distinction between advocacy and discussion on one hand and incitement on the other. The court held that Section 66A could not be seen as a reasonable restriction on an individuals right to speech and expression.
The court, however, upheld the validity of section 69B and the 2011 guidelines for the implementation of the I-T Act that allowed the government to block websites if their content had the potential to create communal disturbance, social disorder or affect India’s relationship with other countries.
The court also watered down section 79 of the I-T Act making it further difficult for the police to harass innocent people for their comments on social network sites, but it upheld the provisions and the guidelines making intermediaries liable for removing objectionable content on being notified by the government.
Shreya Singhal- the original petitioner in the case was understandably jubilant after court verdict. She said it was a day for triumph of free speech.
The Internet & Mobile Association of India [IAMAI] called the verdict a momentous victory for the 302 million strong Internet users in India. Dr Subho Ray, President, IAMAI said, This landmark judgment strengthens the safe harbour provisions for Intermediaries contained in the Section 79 of the Information Technology Act. It is especially helpful to smaller companies like Mouthshut.com who will now not be harassed by the frivolous and mal-intentioned notices of the take down. Both the judgment together will ensure Internet freedom for users and freedom of doing business on part of Intermediaries; thereby ensuring more innovation and investments in the Indian Internet sector.
What Section 66A of the IT Act says:
Section 66A prescribes the punishment for sending “offensive’ messages through computers or any other communication device such as a mobile phone or a tablet, and a conviction can fetch a maximum of three years in jail.
According to the act, 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,
(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.
Several individuals had been victimised under the provisions of this law and many found mention in Shreya Singhals PIL. She mentioned the well-known case of a 21-year-old girl in Maharashtra- for questioning on Facebook the shutdown in Mumbai after Shiv Sena leader Bal Thackeray’s death, which was ‘liked’ and shared by her friend, who was also arrested. Shaheen Dhada- the girl in question became a national celebrity after the innocuous social media action by her and her friend Renu Srinivasan, resulted in assault, illegal detention for 10 days and a subsequent compensated Rs 50,000 by the National Human Rights Commission through the Maharashtra government.
After Tuesdays verdict, Shakil Dhada, said he had spoken to his sister Shaheen who “is very happy about the SC ruling. The duo also assured that they would support anybody else who faces a similar situation in future and urged the youth to emulate her example.
Shreya had also referred to an April 2012 incident, when a professor of chemistry from Jadavpur University in West Bengal, Ambikesh Mahapatra, was arrested for posting a cartoon concerning a political figure on social networking sites.
Former attorney general Soli J Sorabjee, termed the judgment a ‘glorious vindication’ of right to free speech. He said: “The judgment is well researched, well reasoned and erudite in expression. It is a glorious vindication of freedom of expression. TransAsia News
Kashmiri Youth hail the decision
Srinagar: Youth in Kashmir Tuesday hailed the landmark verdict of Supreme Court of India to struck down the 66A of IT Act that had empowered police to arrest any person for posting an objectionable text or liking any objectionable post on social networking sites like twitter, facebook, whatsapp etc.
It is of course a land mark decision and we have a reason to smile. This Act had been giving sleepless nights to youth and was stopping everyone to express himself freely. Number of youth were detained in Kashmir just because they dare to speak the truth and posted messages on social networking sites that were offensive for police and the government, a law graduate from Kashmir University said.
In the wake of numerous complaints of harassment and arrests all across India and particularly in Kashmir Valley due to the presence of 66A, the Supreme Court said public’s right to know is directly affected by Section 66A of Information Technology Act. The apex court also said Section 66A of IT Act clearly affects Right to Freedom of Speech and Expression enshrined under Indian Constitution.
The social networking users while terming the decision of Supreme Court as pro-people and pro-democratic said that in this progressive and modernized world, the right to freedom of speech cant be curtailed. One of the women was booked in Palgahr simply for pressing Like button on an anti-Bal Thackray post on facebook.
In Kashmir Valley as well, youth were called to police stations who had commented on the facebook status of girls musical band. There are other numerous examples, when police called youth to police stations and detained them for expressing themselves on social networking sites.
Such incidents had set a bad precedent where clicking a like exposed a user to criminal consequences. Today it was a like button and tomorrow anything could have been brought within the ambit of Information Technology Act. We are really happy that this dreaded act died at last, said a group of students.
Reacting over the scrapping of draconian 66A, a lawyer said that this act was used by previous government for their own political agenda. A law has to be for the people and to stop its misuse should be the top priority of a corruption free government, he said.
The frequent arrests of youth in past for posting content online has led to the genuine belief that Kashmir is no longer home to free speech , even the trivial sort. It is in fact a landmark decision but to what extent it can give relief to the youth in Kashmir is a million dollar question, said a journalist. (CNS)
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