"Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech." -- Benjamin Franklin

The words of Benjamin Franklin are evergreen, they find relevance even in today's rapidly transforming world. Freedom of speech and expression of the individual are two core principles of a thriving democracy like India, which ensures that public opinion is well amalgamated in policy matters. In the form of healthy criticism and debate, it keeps a check on government's arbitrariness.

This landmark judgement delivered by a division bench of the Supreme Court comprising of Justice J. Chelameswar and Justice Rohinton Fali Nariman struck down the section 66-A of the Information Technology Act, 2000 and reaffirmed the people's right to free speech and expression without any unreasonable restrictions or vague provisions and even expanded its scope by distinguishing between the discussion, advocacy and incitement of an issue.

Facts Of The Case

1. Police arrested two women for posting allegedly offensive and objectionable comments on Facebook about the propriety of shutting down the city of Mumbai after the death of a political leader. The police made the arrests under Section 66A of the Information Technology Act of 2000 (ITA), which punishes any person who sends through a computer resource or communication device any information that is grossly offensive, or with the knowledge of its falsity, the information is transmitted for the purpose of causing annoyance, inconvenience, danger, insult, injury, hatred, or ill will.
    
2. Although the police later released the women and dismissed their prosecution, the incident invoked substantial media attention and criticism. The women then filed a petition, challenging the constitutional validity of Section 66A on the ground that it violates the right to freedom of expression.
    
3. The Hon'ble Court clubbed all petitions with similar issues under Shreya Singhal v. UOI, which was a PIL filed by Advocate Shreya Singhal.

Key Issues Involved:

1. Issue 1
   Whether section 66A of the IT Act 2000 is violative of the fundamental right of speech and expression guaranteed under article 19(1)(a) and unconstitutional?
    
2. Issue 2
   Whether Section 69A and the Rules made by the Centre in furtherance with the section are unconstitutional?
    
3. Issue 3
   Whether the section 118(d) of the Kerela Police Act is constitutional or not?

 

Contentions Raised By The Petitioner:

1. The very basis of section 66-A, that it has given rise to new forms of crime – is incorrect and that Sections 66-B to 67-C and various sections of the Penal Code,1860 are good enough to deal with these crimes.
2. Section 66-A infringes the fundamental right to free speech and expression and is not saved by any of the eight subjects covered under article 19(2).
3. In creating an offence, Section 66-A suffers from the vice of vagueness because unlike the offence created by Section 66 of the same act, none of the terms like causing annoyance, inconvenience, are even attempted to be defined, and cannot be defined, the result being that innocent persons are roped in easily.
4. It gives arbitrary discretionary powers to the enforcing authorities to determine what cases can be included in the section's ambit or not.
5. The section 66-A has a chilling effect on freedom of speech and expression. The right of viewers is infringed as such chilling effect would not give them the benefit of the various point of views that could be viewed on the internet.
6. The rights under article 14 and article 21 are breached because there is no intelligible differentia between those who use the internet and those who use other mediums of communication. It is discriminatory to punish somebody because he uses a certain medium of communication.

Arguments Of The Respondent:

1. Legislature is in the best position to understand and appreciate the needs of the people. There is a presumption in favour of the constitutionality of an enactment. The court should only interfere when there is clear violation of the rights in part III of the constitution.
2. Mere possibility of abuse of a provision cannot be a ground to declare it invalid.
3. Loose language may be used by section 66-A, but even then, vagueness is not a ground to declare a statute unconstitutional if it is otherwise legislatively competent and non-arbitrary.
4. There is an intelligible differentia between print and other media as opposed to the internet and hence the reasonableness of restrictions applied to the internet medium will also be different from that applying to other mediums.
5. The court should read into section 66-A each of the subject-matters contained in article 19(2) in order to save the constitutionality of the provision.
6. The government is committed to free speech and Section 66-A would not be used to curb free speech, but only be used when excesses are perpetrated by persons on the rights of others.

Court's Reasoning

On Constitutionality of Section 66-A of the Information Technology Act, 2000:

1. Freedom of speech and expression is compromised:

   The IT Act, 2000 casts the net very wide- all the information that is disseminated over the internet is included within its reach. The definition does not refer to what the content of the information is, it only refers to the medium of the transmission of the information. Further, that the section's language does not differentiate between advocacy of a particular view that may be offensive to some people and incitement by which the said information creates public disorder or any of the subject matters covered under article 19(2).
    

2. No violation of article 14:

   There exists an intelligible differentia between the print and other media and the internet and the legislature may therefore make separate offences for information on the internet. There exists therefore an intelligible differentia having reasonable relation with the object sought to be achieved Thus, there is no infringement of article 14.
    

3. 66-A is not protected under the restrictions of public order, defamation, incitement to an offence and decency or morality:

   In order to determine whether the message is a threat to public order, it must be known that whether it disturbs the community at large or merely an individual. There is no distinction made by the section 66-A between a message sent to one person or to many persons. Further there is no specification about the message should have a clear tendency to disrupt public order. Mere "annoyance" need not cause disturbance of public order.
     An essential ingredient of defamation is Injury to Reputation, but Section 66-A is not at all concerned with it because if something is grossly offensive or annoying that does not necessarily imply that it will be affecting the reputation of a person. Moreover, the impugned section does not have a proximate connection with incitement to commit an offence. Firstly, there should be distinction between mere discussion or advocacy and incitement. Secondly, causing annoyance, inconvenience or being of a grossly offensive character are not offences within themselves. On the point of decency and morality the court opined that what may be grossly offensive or annoying may not at all be obscene.
    

4. Vagueness:

   The expressions used in section are open ended, undefined and vague as a result of which neither the accused nor the authorities will be clear as in which category a particular communication would fall in. A penal law is void for vagueness if it fails to define the criminal offence definitely. It should be understandable by the ordinary person and also by the authorities.
    

5. Chilling Effect on Freedom of speech and expression:

   Article 19 provides the freedom to express unpalatable views, cause annoyance etc so long as it does not amount to incitement leading to any of the restrictions set out in article 19(2). The restriction on the fundamental rights must be couched in the narrowest possible terms so that they do not have a chilling effect on the freedoms guaranteed under article 19.
    

6. Possibility of an act being abused by the authorities:

   A provision must be judged on its merits and constitutionality and its possible abuse cannot be a test of determining its validity. Moreover, assurance of its reasonable administration from the Government of the day is not a ground to declare it constitutional.
    

7. Procedural Unreasonableness:

   The procedural safeguards under the Criminal Code of Procedure, are not available for a person book under section 66-A of the IT Act, 2000 when committing a similar offence over internet. This contention laid on procedural grounds need not be considered once section 66-A is struck down on substantive grounds.

On constitutionality of Section 69-A of the IT Act, 2000 and Rules:

• The section 69-A of the IT Act, 2000 is a narrowly drawn provision with several safeguards.
  • Firstly, blocking can only be resorted to when Central government is satisfied that it is necessary.
  • Secondly, such necessity is relatable only to some of the subjects set out in 19(2) of the constitution.
  • Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under article 226 of the Constitution.
     
• The Rules further provide for a hearing before the Committee set up – which then looks into whether it is necessary to block such information.
  • Similarly, other procedural safeguards are also available.
  • Thus, merely because the additional safeguards available under the CrPC are not available, does not make the rules infirm.

On Constitutionality of the Section 118 of the Kerela Police Act, 1960

1. What had been said of the section 66-A of the IT Act would apply directly on section 118 of the Kerela Police Act, as it suffers from the same type of vagueness and overbreadth that led to the invalidity of the Section 66-A of the IT Act, 2000. Section 118(d) also violates article 19(1)(a) and is not saved by any subject matters contained in article 19(2) and hence it is unconstitutional.

Judgement
Finally, the court held that:

1. The Section 66-A of the Information Technology Act, 2000 was violative of the Article 19(1)(a) and not saved under Article 19(2) and thus struck it down.
2. The Section 69-A and the Information Technology Rules, 2009 are constitutionally valid.
3. Section 118(d) of the Kerala Police Act is struck down as being violative of Article 19(1)(a) and not saved by Article 19(2).

Developments After The Judgement
Despite being a landmark and progressive judgement on reaffirming the citizen's right to free speech and expression, it was criticised as numerous cases has been filed against the innocent people under Section 66A. Police officers and even subordinate court judges were not aware of this supreme court's order and it took time for it trickle down and provide relief to those involved in pending lis under this section.

Nevertheless, this judgement is a testament to the Indian Judiciary's unwavering commitment to safeguard the liberty of its citizens from the arbitrariness in the actions of the establishment.