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Court Judgment on 66 A: A victory for freedom of expression
“Freedom of expression can be defined in three aspects: Discussion, Advocacy and Incitement.” This historic statement was made today by Justice Nariman, declaring the complete victory of freedom of speech in India.
Today – 24 March 2015 – we got a landmark decision from the Supreme Court, when it struck down Section 66A of the Information Technology (IT) Act.
The draconian law had been reason for many internet users to be jailed for either Facebook posts or publishing cartoons. The Supreme Court declared Section 66A of the IT Act unconstitutional and ruled against the central government which had defended the Section. The Supreme Court also addressed another two sections of the law: Section 79, which forces intermediaries to take down online content, and Section 69, which deals with blocking of online content.
In the statement, the bench, consisting of J Chelameswar and R F Nariman, declared: “The public’s right to know is directly affected by Section 66A of the Information Technology Act. Liberty of thought and expression is of cardinal importance and it must be upheld.”
Justice Nariman clearly mentioned that Section 66A does not make any distinction as to whether the communication has any impact on public order. Explaining the grounds for holding the provision as “unconstitutional”, the bench declared that terms like “annoying”, “inconvenient” and “grossly offensive” used in the provision are vague, because it is difficult for police and the offender to know the ingredients of the offence.
In his statement, he added: “Governments come and governments go, the law persists. And the law must be judged on its merit. 66A is invalid and it cannot be saved, even if the government says it won’t abuse the law.”
The court declared that “such a law hit at the root of liberty and freedom of expression, the two cardinal pillars of democracy.”
With regard to the other two sections, the court held that Section 69A2 is a narrowly drawn provision with several safeguards, stating that content could be blocked when the central government is satisfied that it is necessary to do so, and that the provision provides for a hearing before a committee to determine the necessity of blocking content. It was noted that the reasons for blocking have to be recorded in writing in a blocking order that should be amenable to judicial scrutiny. As for Section 79, the court noted that a court order or government order needs to be taken, under certain limited circumstances, for application to intermediaries (websites such as Facebook and YouTube, for example) for content published by individuals who use their platforms.
The court struck neither of these provisions down. It found the law in both instances to contain sufficient safeguards against governmental abuse. Even if one were to consider these aspects of the decision as detrimental, in some way, to our civil liberties, any such concerns, at this juncture, ought to only represent minor quibbles, as an intermediary needs a court order or a government order for getting content taken down.
The judgment is the result of many petitioners and their supporters, including multiple virtual support groups, who have fought many years to strike down such laws. A number of citizens have been arrested over the past two to three years under Section 66A for posts on social media networking websites such as Facebook and Twitter.
Three years back, in 2012, the first PIL (public interest legislation) on Section 66 A was filed by a law student, Shreya Singhal, who sought an amendment after two girls – Rinu Shrinivasan and Shaheen Dhada – were arrested for posting on Facebook.
In 2014, Kerala Police arrested a college student on charges of sedition for allegedly replacing some of the words of an undisclosed patriotic song with abuses in a Facebook post. One year later, in March 2015, a student of 11th standard from Bareilly, Uttar Pradesh was arrested after a local political party leader filed a complaint with the police, claiming that a student posted an offensive comment about a particular community on Facebook and attributing it to the student arrested.
The 122-page verdict draws a distinction between discussion, advocacy and incitement, stating: “It is at this stage (incitement) that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, etc.”
It is interesting to see that the judgment has also brought change in the mind set of the previous government and the present. Government stakeholders who were supporting Section 66A are now opposing to it, and welcoming the judgment.
Moreover, industry lobby groups such as the National Association of Software and Service Companies (NASSCOM) have supported and welcomed the judgment. R. Chandrashekhar, president of NASSCOM, stated, “Internet as a medium is meant to be free and transcend territorial borders with minimal regulation and monitoring. The IT Act has well served the objective to provide the legal framework for data security and Internet laws in the country. The changes enabled by the Supreme Court judgement would provide much-needed boost to the citizens of the country and help the objective of a digitally connected India.”
Overall, Justice Nariman’s judgement has shown the right kind of conviction and defended the Constitution’s ideas of tolerance with a sense of vivacity and integrity. Moreover, it has also provided the jurisprudence of free speech with an enhanced and rare clarity, and gives us hope to believe in the law, freedom of speech and our rights.
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Ritu Srivastava is project manager at APC member Digital Empowerment Foundation, and the author of the GISWatch reports on India .
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