The Supreme Court on Tuesday quashed the controversial section 66(A) of the Information Technology (IT) Act, which criminalises “causing annoyance or inconvenience” online or electronically, saying the section violated the fundamental right to freedom of expression, under article 19(1) (a) of the Constitution.
The court said the provision, introduced in 2009 to the original Act of 2000, used expressions “completely open-ended and undefined”. Every expression used was “nebulous” in meaning, it added. “What may be offensive to one may not be offensive to another. What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another. Even the expression ‘persistently’ is completely imprecise,” the court said in a 120-page judgment.
In the past few years, the provision has been invoked to make several arrests. On behalf of the victims, several petitions were moved in the Supreme Court, and these were heard at length by the court.
In the judgment, written by judges R F Nariman and J Chelameswar, the court clarified though the right to freedom of expression wasn’t absolute, the restrictions listed in article 19 (2) didn’t save section 66A. The restrictions could be justified only if there was a threat to public order or “clear and present danger”, it said.
“There is rule of law and rule by the law. The Supreme Court has shown it is with the times, tech-savvy and ready to stand up and uphold the constitutional principles that make India a celebrated democracy. This is how ‘Digital India’ will be made in India,” said Mishi Choudhary, executive director, Software Freedom Law Centre India. Choudhary is also the legal counsel of Faisal Farooqi, chief executive of Mouthshut, one the parties contesting another section of the IT Act, dealing with intermediaries.
The Centre has been arguing quashing section 66A will not be right, as it needs some mechanism to control content shared on the internet, which might be a threat to national security, or religiously inflammatory. Though other provisions under the IT Act, such as section 79, allow the government to block content, an option has been left open to introduce another law, one that will ensure better deterrence and be more specific.
Union minister for communications and IT, Ravi Shankar Prasad, said the National Democratic Alliance government felt the judgment supported “freedom of speech and expression” on social media. “Those in power must be tolerant and liberal towards criticism,” he said, adding on issues pertaining to national security and religious sentiments were concerned, the government would invite consultations and any action would be after “widespread consultation” and with “necessary safeguards”.
N A Vijayashankar, a cyber law consultant, however, said the court’s judgment might have been a “knee-jerk reaction”, as section 66A provided resources for crimes such as cyberstalking, bulling and annoying through SMS and email, a solution to which wasn’t specifically defined in other provisions.
“The judgment seems to have been clouded by high-profile arrests…if the problem was enforcement by police agencies, the court should have taken the opportunity to address that instead of scrapping the entire section,” he said.
The court rejected the government’s assurance that it would apply the provision reasonably, saying an assurance of a government might not be heeded to by the next. Also, it rejected the government’s contention that Parliament was in the best position to understand and appreciate the needs of the people, that courts must presume the constitutionality of a law. “Mere possibility of abuse of a provision cannot be grounds for invalidating a law,” the government counsel said. But this was rejected by the court.
The intermediary guidelines under section 79 that provide safe harbour to companies such as Facebook, Twitter and Mouthshut have been diluted. Now, a court order is mandatory to take down content by an intermediary. “This augurs very well for online companies, which have been inundated with requests to take down all kinds of legal content, as the power to complain was given to any person,” said Choudhary.
The first public interest litigation against section 66(A) was filed in 2012, by a then 21-year-old student, Shreya Singhal. The petition said, “The phraseology of section 66(A) 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, therefore, falls foul of articles 14, 19 (1)(a) and 21 of the Constitution…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.”
A few years ago, several incidents sparked an outcry against section 66A. While the Maharashtra government arrested two girls in Palghar near Mumbai for criticising on Facebook a shutdown of Mumbai city during the funeral of former Shiv Sena chief Bal Thackeray, a businessman in Puducherry was arrested for comments made on Twitter against Karti Chidambaram, son of former finance minister P Chidambaram.
In another incident, Ambikesh Mahapatra, a professor of chemistry at Jadavpur University in West Bengal, was arrested for posting a cartoon of state Chief Minister Mamata Banerjee on a social networking site, and another involving the arrest of two Air India Ltd employees.
Following these incidents, the government strengthened the enforcement of the law, mandating complaints under this section be registered only with the permission of an officer of or above the rank of deputy commissioner of police, and inspector general in metro cities.
Though the government has managed to curtail the number of arrests under section 66(A), those championing the cause of the internet continue to voice concern, saying it is used by politicians as a weapon to curb criticism online.