SC quashes Section 66A, says it curbs freedom of speech

The Supreme Court on Tuesday quashed the Information Technology Act's contentious Section 66A, holding that it was violative of the Constitution's Article 19(1)(a) guaranteeing freedom of speech and expression.

"Section 66A of the Information Technology Act, 2000, is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2) (imposing reasonable restriction on this right)," said a bench of Justice J. Chelameswar and Justice Rohinton Fali Nariman in their judgment.

They held the section "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".

However, the bench upheld Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules, 2009, as constitutionally valid.

The court also struck down Kerala Police Act's Section 118 (d) which in sum and substance is incorporation of Section 66A on the same grounds.

Pronouncing the judgment, Justice Nariman said that since the Constitution's preamble speaks of liberty of thought, expression, belief, faith and worship and India being a sovereign democratic republic, it cannot "be over-emphasized that when it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme".

Brushing aside the government assurance that Section 66A would be "administered in a reasonable manner", the court said that if it is "otherwise invalid, it cannot be saved by an assurance from the learned additional solicitor general" to this purpose.

"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," it said.

Noting that most of the arguments both by petitioners and the government veered around expression "public order", the court said that the three fundamentals of the freedom of speech and expression are 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," the court said.

"...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 tranquillity," it said, noting that under Section 66A, the "offence is complete by sending a message for the purpose of causing annoyance, either 'persistently' or otherwise without in any manner impacting public order".

Supporting the petitioners' contention that public's right to know is directly affected by this section, the court said: "It is clear that the right of the people to know - the market place of ideas - which the internet provides to persons of all kinds is what attracts Section 66A".

"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 verdict came on a batch of petitions challenging the section's constitutional validity on the grounds that it was vague and ambiguous and was being misused by authorities.