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The Supreme Court strikes down Section 66A of the IT Act, 2000

The Supreme Court has held a landmark judgment wherein it has decided to finally strike down Section 66A of the Information Technology Act, 2000 in order to uphold the constitutional right of freedom of expression.

The Supreme Court has held a landmark judgment wherein it has decided to finally strike down Section 66A of the Information Technology Act, 2000 in order to uphold the constitutional right of freedom of expression. This provision of cyber law provided substantial power to arrest any individual for posting anything alleged to be an “offensive” piece of material over the internet. The Supreme Court has concluded that this provision completely contravenes Section 19(2) of the Constitution of India wherein the country grants its citizens the freedom of speech. It was thus very important for this provision to be repealed and removed immediately for the sake of preserving the fundamental rights given within our constitution.

What prompted the Supreme Court to rule this judgment was the prior case of Shreya Singhal v. Union of India which was a two-judge bench of the Supreme Court in the year 2015 over the issue of online speeches, their eligibility to be spoken without violation of any rights and the intermediary liability in our country. It was here that the Supreme Court struck down Section 66A of the Information Technology Act, 2000, pertaining to all restrictions imposed over online speeches due to their unconstitutional nature and the violation of the basic fundamental right of freedom of speech which is provided under Article 19(1) (a) of the Indian Constitution. Furthermore, this section in particular was not exempted on account of being a reasonable restriction of any sort over the freedom of speech given under the Constitution under Article 19(2. Furthermore, the apex court also held Section 79 along with the rules pertaining within this section which stated that any online intermediaries would only be required to remove any content over the internet after receiving an order demanding the same, from a court or a government authority.

This section of the IT Act provided the definition for the punishment to be imposed in cases wherein offensive and untoward messages are directed via a computer or any other digital device like a tablet, mobile phone, laptop etc. This section also defined that any conviction under 66A would amount to a maximum jail time of three years along with a fine to be paid for the offence. If we analyse section, 66A, the definition for the same gives the following:

Section 66A of the Information Technology Act, made it a punishable offence for any person to

"send, 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,"

This section clearly didn’t provide a well-structured or clear definition of the aspects which would be covered under offensive texts or slander whatsoever. Moreover the ambiguity over the interpretation of the same left a lot of room for biased and wrongful conviction thereby putting a gag on the basic right to express freely. The terms come off as arbitrary and unclear which had even led to the expected misuse of this section both through personal vindications as well as political challenges wherein criminal cases were instituted for no legitimate reason against any speech which seemed to offend an individual. The same were challenged under several writ petitions before the Supreme Court, which were summarised together and thereby heard by a bench comprising of Justices Chelameswar and Nariman who repealed this section altogether.
Controversial dilemmas over the issue

The Supreme Court’s decision to strike down this section didn’t come as a sudden move since this 52-page judgement was ruled over only after exhaustive deliberations of the India, English as well as the US jurisprudence laws over freedom of speech and expression. Further, it was deemed logical to read Section 79 of the Information Technology Act and the related rules, and affirm the constitutionality of Section 69A of the Act instead. While speaking for the Court, Justice Nariman cited the several standards which need to be applied wherein any restrictions over speech can be deemed reasonable, under Article 19(2) of the Indian Constitution.

It was clearly concluded and defined by the court that Section 66A was vague and brought unrequired ambiguity into the interpretations of the same leading to a lot of misuse. IT completely threatened one of the key fundamental rights provided under the Constitution and thus the need to revoke its existence was deemed final. Moreover, the Apex court also reconsidered the drastic effects on speeches caused by such a vague and inconclusive statutory language as a rationale for striking down the provision. Thus, the Court rightfully stated that the public order restrictions under Article 19(2) of the Constitution shall not be applicable under cases involving advocacy and instead shall only apply to any form of incitement, it at all, especially those which are meant to cause harm within the public order specifically.

Moreover, over the challenge on the grounds under Article 14 of the Constitution of India, the Court stated that "we are unable to agree with counsel for the petitioners that there is no intelligible differentia between the medium of print, broadcast and real live speech as opposed to speech on the internet. The intelligible differentia is clear – the internet gives any individual a platform which requires very little or no payment through which to air his views."  vide the judgment.

As far as Section 79 is concerned, the apex court also read down the same along with rule 3(4) of the Intermediaries Guidelines which specifically deals with the liability of intermediaries, especially ones which host content on a large scale and provide online services on their portal.

Furthermore, in order to protect the Act at the same time, the Supreme Court also upheld the secret blocking process provided under Section 69A of the Act, through which the Government is permitted to remove any piece of content from the Internet, stating that that it did not suffer from the infirmities given under Section 66A or Section 79, and has thus been deemed to be a narrowly drawn provision.

Challenges to the order

Even though the primary goal behind this major amendment was to remove and further prevent any misuse of information technology, especially through social media, Section 66A came with extremely wide parameters, which allowed for whimsical interpretations of the provision by law enforcement agencies as well. It was duly observed that almost all the terms given under the section had not been particularly defined within the IT Act whatsoever. It was thus contended by the petitioners that this section was designed to curtail and revoke the fundamental right of freedom of speech and expression given under the Constitution of India and thus this went way beyond the definition of any “reasonable restrictions” over the freedom thus provided.

Effects of the repeal of Section 66A
  • After an analyses of all the arguments against this section and the fact that it directly contravenes the provisions under the Constitution, the Supreme Court struck down this entire provision in order to prevent the ardent misuse of the same because of lack of clarity provided in this section and also to protect the sanctity of the Constitution of India and the rights given under it. The Hon’ble Supreme Court stated the following in the said judgment:
  • Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.”
  • Furthermore, the Hon’ble Supreme while striking down the validity of Section 66A of the IT Act, 2000 held that, We, therefore, hold that the Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth.”
Benefits of striking down Section 66A:
  • The repeal of Section 66A was made with the primary goal of bolstering the fundamental rights of freedom of expression and speech which had ultimately given greater clarity on the democratic rights of expression available to the people of India. Citizens are free to voice their opinion or dissent over any issue without being threatened by imprisonment from Government authorities which makes India a stronger democracy in the eyes of the entire world.
  • The judgment also considered the validity of other provisions of the IT Act such as Section 69A and 79 along with the Rules made thereunder since section 69A and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 permits the Central Government to authorise the blocking or to order an intermediary (for webs portals such as Facebook, YouTube or any internet/ telecom service provider) to block access to such sites by the general public if the Central Government is satisfied that such content is likely to create communal disturbance, social disorder or affect India's defence and sovereignty, etc. However, the Supreme Court upheld these sections and the constitutional validity of thi power possessed by the Government in order to safeguard the interest of the country in general.
  • However, Section 79 has been substantially read down so that the intermediaries shall only be required to block any information if it is ordered to do so with a Court Order or a notification issued by the Government. The Supreme Court has removed the requirement for intermediaries to undertake self-policing of the nature of content while allowing the government to direct intermediaries to disable any such information which it considered as harmful or inciteful in nature. This not only protects the national interest of the country by avoiding sedition instances but at the same time secures and gives its citizens the democratic right to speech within the interests of the nation’s public policy.
  • With 66A there existed a lack of distinct outlines as to what content was objectionable and what was not. However, the same criteria is not being used under 69A, since while the section has been upheld, it has also been demarcated with the extent to which the Central Government may intervene in case of publication of sensitive content.
  • The Court has ordered the decision to repeal S.66A primarily due to its potential to cause an obstruction to freedom of speech. While upholding 69A it has been careful to read down its obstructive clauses to enable the public to have greater freedom as long as the sovereignty of the nation is not hindered in any manner.

The reason for this complete removal of the section comes as no surprise since section 66A of the IT Act,2000 was completely unclear and devoid of interpretations of the law to the extent that even the legal fraternity began to interpret its provision liberally, causing widespread misuse for personal and political gains. The fact that a genuine citizen of the nation could be put behind bars for simply expressing a little dissent over the internet came as a wakeup call and was thus struck down immediately by the Apex Court. This decision by the Supreme Court has only enabled India’s position in the world as an even stronger democracy wherein rules are not interpreted liberally and the rights of the citizens are put above all else.


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