On March 24, 2015, the Supreme Court of India ruled that that Section 66A of the Information Technology Act, 2000 was unconstitutional. The decision, widely regarded as a watershed moment in free speech law, adopted progressive international free speech standards and ensured that the strict scrutiny of standards for freedom of expression was equally applicable over the internet.
Case Background
In 2012, the Mumbai Police arrested two women, Shaheen Dhada and Rinu Srinivasan, for making a scathing Facebook post about the bandh enforced in the aftermath of Shiv Sena founder Bal Thackeray’s death. The police ultimately released the girls but their arrests were condemned across the country.
Many activists complained that police had abused their authority by invoking Section 66A of the Information Technology Act, 2000, which prescribes the punishment for sending obnoxious texts or messages through communication services. It has curtailed the fundamental right to free expression guaranteed by Article 19 (1) (a) of the Indian Constitution.
The offense specified in Section 66A of the IT Act falls under the category of cognizable crimes, which allow police officers to arrest and investigate a case without a warrant. As a result, many questionable arrests of people were made by police around the country for sharing any viewpoint or position that the government label as ‘obnoxious content.’ There was a protest that this content was actually mostly political dissent.
In 2013, the Union Government proposed an amendment to arrest a person made under Section 66A of the IT Act. According to the Central Government’s advice, no one should be seized by the police without the prior authorization of a senior official who is not below the level of Inspector General of Police. People around the country submitted multiple petitions to overturn the unlawful elements of the IT Act. The Supreme Court of India merged the petitions into a single Public Interest Litigation, and the case was dubbed Shreya Singhal v. Union of India.
Facts in Issue
The petitioner filed a writ case in the public interest under Article 32 of the Indian Constitution, requesting that the Supreme Court of India declare Sections 66A, 69A, and 79 of the IT Act to be ultra-vires to the Indian Constitution. The petition claimed that the language of these laws was too broad and vague.
The petitioner further stated that the purpose of these rules is to encourage reckless exploitation, which is prohibited under Articles 14, 19(1)(a), and 21 of the Indian Constitution. Terminologies such as menacing, offensive, irritation, inconvenience, obstruction, danger, and insult are not defined in any statute. As a result, it is more vulnerable to undesired mistreatment. The distinction created between citizens and netizens of the nation was deemed arbitrary and violated the principle of freedom of expression based on Article 19(1)(a) of the Constitution.
Decision: What is the constitutionality of Section 66A of the Information Technology Act?
The Constitution’s preamble states that India is a sovereign, democratic, and republican country. It cannot be overstated that, when it comes to democracy, freedom of opinion and speech is a fundamental virtue that is of crucial importance under our constitutional structure. Thus, “freedom of speech and expression” has three components: discussion, advocacy, and provocation. Article 19(2) is only applicable when all three conditions are met. It is not permissible for the state to restrict free expression to advance the general public interest under our constitutional structure. If a statute violates a public order under Section 19(2), the law is unconstitutional and invalid because public order is identical to public safety and serenity.
The criteria for determining whether or not public order has been violated is to consider the following question: Does a specific conduct cause disruption in the current life of the community, or does it just harm an individual, leaving the peace of society unaffected?
When no reasonable criteria are provided to define guilt in a section that establishes an offense and no clear direction is offered to either law-abiding individuals or authorities and courts, the part that generates an offense and is ambiguous must throw down as arbitrary and irrational. The terms employed in section 66A are entirely open-ended, vague, and undefined.
Furthermore, a prospective the offender of Section 66A and the authorities charged with enforcing section 66A have no workable threshold for booking a person for an infraction under section 66A. As a result, section 66A arbitrarily, unduly, and disproportionately infringes on the right to free expression, upsetting the balance between such a right and the justifiable constraints put on it. The Section is also unconstitutional on the grounds because it encompasses protected speech and innocent speech, and so has the potential to be employed in such a way as to limit free expression, and thus must be struck down on the grounds of over breadth.
Furthermore, there is a discernible distinction between speech on the internet and other modes of communication for which regulations might define separate offenses. As a result, Section 66A is not discriminatory.
Judgment: according to Article 14. Section 66A of the IT Act of 2000 is stricken down in its entirety for violating Article 19(1)(a) and is not preserved by Article 19. (2).
Decision: Are Section 69A and the Rules unconstitutional?
Section 69A is a strictly worded provision with some protections. Furthermore, the rules are not in any way unconstitutional. On the other hand, the regulations do not include further protections, such as those provided in CRPC sections 95 and 96, yet the rules cannot be deemed unlawful for this reason.
Decision Obtained: Section 69Aand the Information Technology (Procedure and Safeguards for Blocking Public Access to Information) Rules 2009 are both constitutionally valid.
Author: Usha Saha, Legal Intern at PA Legal.
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