Section 66A of the Information Technology Act is unconstitutional in its entirety, the Supreme Court of India ruled on Tuesday striking down a provision that had led to the arrests of many people for posting content deemed to be “allegedly objectionable” on the Internet. Now no arrest can be made without court permission under Section 66A of IT Act.
“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,” said a Bench of Justices J. Chelameswar and Rohinton F. Nariman. The definition of offences under the provision was “open-ended and undefined”. The Bench turned down a plea to strike down sections 69A and 79 of the Act, which deal with the procedure and safeguards for blocking certain websites and exemption from liability of intermediaries in certain cases, respectively.
Cases under Section 66A of IT Act:
The law was first challenged by a law student after two young women were arrested in November 2012 in Mumbai for comments on Facebook following the death of politician Bal Thackeray.Shaheen Dhada was held for criticising Mumbai's shutdown after Thackeray's death. Renu Srinivasan, who "liked" the comment, was also arrested. The two were later released on bail. The arrests led to outrage in India with many calling for the law to be scrapped. Since then there have been several other arrests under the law, leading to charges of abuse:
Government Welcomes Court Decision
- On 17 March 2015, a teenage student was jailed in the northern state of Uttar Pradesh for allegedly posting a comment on Facebook criticising state minister Azam Khan. The teenager was later freed on bail.
- In October 2012, a 46-year-old businessman in the southern city of Pondicherry was arrested for a tweet criticising Karti Chidambaram, son of then finance minister P Chidambaram. He was later released on bail.
- In September 2012, there was outrage when a cartoonist was jailed in Mumbai on charges of sedition for his anti-corruption drawings. The charges were later dropped.
- In April 2012, the West Bengal government arrested a teacher who had emailed to friends a cartoon that was critical of Chief Minister Mamata Banerjee. He too was later released on bail.
Following is the text of the statement made by the Union Minister for Telecom & IT, Sh Ravi Shankar Prasad on Supreme Court judgement on section 66-A of IT act:
“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. “[/vc_column_text][/vc_column][/vc_row]