The author of this Article is Rahul Soy. He is a student of Al-Azhar Law College, Thodupuzha. He was also an Intern at Law and Justice Research Foundation.
This article is a Review of the Supreme Court Judgement of Shreya Singhal and Ors V/s Union of India.
Introduction
The police have arrested two women from Mumbai under section 66A of the Information Technology Act, 2000. These two women have posted offensive and objectionable comments on Facebook about the shutting down of Mumbai city due to the death of a political leader.
Section 66A of the Information Technology Act, 2000 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.
Later the police have released the women and dismissed their prosecution, but the incident has invoked media attention and criticism. Aggrieved persons then filed a petition, challenging the constitutional validity of section 66A, on the ground that it violates the right to freedom of expression.
Issues Involved
The main issue of this case was whether section 66A of the IT Act 2000, violated the right to freedom of expression under Article 19(1)(a) of the constitution of India. Article 19(2) is an exception to the right, that is it gives the power to the government for a reasonable restriction. The petitioner argued that section 66A was unconstitutional because its intended protection against annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, or ill-will fall outside the purview of Article 19(2).
On the other hand, the government argued that the court may interfere only when a statute is clearly violative of the rights conferred on the citizen under Part-III of the Constitution. Also, the government argued that the mere presence of abuse of a provision may not be a ground to declare the provision as unconstitutional. According to the government, vagueness cannot be a ground to declare a statute unconstitutional “if the statute is otherwise legislatively competent and non-arbitrary.”
Decision
The Supreme Court struck down Section 66A of the Information Technology Act, 2000, relating to restrictions on online speech, as unconstitutional on grounds of violating the freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India. The Court further held that the Section was not saved by virtue of being a ‘reasonable restriction’ on the freedom of speech under Article 19(2). The Supreme Court also read down Section 79 and Rules under the Section. It held that online intermediaries would only be obligated to take down content on receiving an order from a court or government authority.
Analysis
The court discussed that discussion, advocacy, and incitement are the three fundamental concepts in understanding freedom of expression. The court found that section 66A is capable of limiting all forms of internet communication if it affects public order, security of the state, etc. The Court further held that the law fails to establish a clear proximate relation to the protection of public order. Also, section 66A protects individuals from defamatory statements through online communications. ‘Injury to reputation’ is the main ingredient of defamation.
The Court also held that the government failed to show that the law intends to prevent communications that incite the commission of an offense because “the mere causing of annoyance, inconvenience, danger, etc., or being grossly offensive or having a menacing character are not offences under the Penal Code at all.” As to petitioners’ challenge of vagueness, the Court found that Section 66A leaves many terms open-ended and undefined, therefore making the statute void for vagueness. Also the court addressed that Section 66A is capable of imposing a chilling effect on the right to freedom of expression and it held that the provision fails to define terms, such as inconvenience or annoyance.
The argument of the petitioners that Section 66A was in violation of Article 14 of the Constitution against discrimination was rejected by the court. The Court declined to address the Petitioners’ challenge of procedural unreasonableness since the law was already declared unconstitutional on substantive grounds. It also found Section 118(d) of the Kerala Police Act to be unconstitutional as applied to Section 66A. Based on the foregoing reasons, the Court invalidated Section 66A of ITA in its entirety as it violated the right to freedom of expression guaranteed under Article 19(1)(a) of the Constitution of India.
Conclusion
More often than not the section 66A of the Information Technology Act 2000 has been misinterpreted and misused. In any democratic country, freedom of speech and expression has an important role in the legal system. For the growth and development of our country, freedom of speech and expression is essential, and not having this would take away the true meaning of democracy. This case made a great impact on the freedom of expression of the people and it turns out to be a landmark judgment.
