The Supreme Court on Tuesday struck down Section 66A of the Information Technology Act for its “vague provisions” that made any citizen who shared any offensive, annoying or inconvenient material on internet liable for imprisonment up to three years.
The contentious provision was under intense debate after instances of its abuse were reported from across the country, the latest being the arrest of a Class XI boy in Uttar Pradesh who posted some offensive pictures of UP Minister Azam Khan on social media.
Deciding a bunch of petitions on the question whether Section 66A violated citizen’s right to freedom of speech and expression under Article 19(1)(a), a Bench of Justices J Chelameswar and Rohington F Nariman said, “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… Does a message have to be sent at least eight times before it can be said that such message is ‘persistently’ sentIJ There is no demarcating line conveyed by any of these expressions — and that is what renders the Section unconstitutionally vague.”
During the hearing, Additional Solicitor General Tushar Mehta defended the law and assured the Court that the Government will administer the law reasonably. But the Bench remained unimpressed and said, “Governments may come and Governments may go but Section 66A goes on forever. An assurance from the present Government even if carried out faithfully would not bind any successor Government.”
The Court, however, upheld the power of the Government to enact a law to specifically deal with offences committed on Internet. Information Technology Minister Ravishankar Prasad said the Centre will enact a stringent law to replace Section 66A, originally enacted by UPA Minister Kapil Sibal in 2008. Till such time, offensive posts on Internet will be punishable under relevant IPC provisions — including defamation, with the difference being that police will require a court order to arrest the offender.
Justice Nariman, writing the judgement for the Bench, found the expressions used in Section 66A to be “nebulous” that failed to demarcate what is an offence, making it open to abuse. The Section read: “Any person who sends…any information that is grossly offensive or menacing character…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…shall be punishable with imprisonment up to three years.”
Former Attorney General Soli Sorabjee who argued for the lead petitioner Shreya Singhal, a law student, argued that Internet is a market place of ideas and such a provision restricted public’s right to know and struck at the root of fundamental right of free speech. Other petitioners — including NGOs — argued that the provision did not have sufficient safeguards as compared to similar provisions in the Indian Penal Code.
The court gave seven solid grounds in support of its conclusion that the expressions used in Section are “completely open ended and undefined”. First, Section 66A failed to distinguish information, which is scientific, literary or having artistic value from those that may be obscene or seditious.
Second, it made no distinction between plain discussion, advocacy of a viewpoint from use of words that may lead to imminent public disorder or security of state. Third, the Section failed to determine whether the offensive information is for mass dissemination or to one person.
Fourth, it did not specify whether the message must show a clear tendency to disrupt public order. Fifth, the expression ‘persistently’ was completely imprecise without definition. Sixth, the provision did not define what criminal intimidation is nor did it concern itself with injury to reputation, thus lacking the basic ingredient of defamation. lastly, Section had no proximate connection with incitement to commit an offence. “Injury, danger or annoyance are not offences by themselves howsoever made and to whosoever made,” the bench said.
The Court even struck down a provision similar to Section 66A found in Kerala Police Act Section 118 that had imposed restrictions on electronic messages.