‘It invades right to free speech, every expression used in it is nebulous’

Section 66A of the Information Technology Act is unconstitutional in its entirety, the Supreme Court ruled on Tuesday striking down a “draconian” provision that had led to the arrests of many people for posting content deemed to be “allegedly objectionable” on the Internet.

“It is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right,” said a Bench of Justices J. Chelameswar and Rohinton F. Nariman. The definition of offences under the provision was “open-ended and undefined”, it said.

The Bench turned down a plea to strike down sections 69A and 79 of the Act, which deal with the procedure and safeguards for blocking certain websites and exemption from liability of intermediaries in certain cases, respectively.

In the judgment, the court said the liberty of thought and expression was a cardinal value of paramount significance under the Constitution. Three concepts fundamental in understanding the reach of this right were discussion, advocacy and incitement. Discussion, or even advocacy, of a particular cause, no matter how unpopular it was, was at the heart of the right to free speech and it was only when such discussion or advocacy reached the level of incitement that it could be curbed on the ground of causing public disorder.

The court then went on to say that Section 66A actually had no proximate connection with public order or with incitement to commit an offence. “The information disseminated over the Internet need not be information which ‘incites’ anybody at all. Written words may be sent that may be purely in the realm of ‘discussion’ or ‘advocacy’ of a ‘particular point of view’. Further, the mere causing of annoyance, inconvenience, danger, etc., or being grossly offensive or having a menacing character are not offences under the [Indian] Penal Code at all,” the court held.

Holding several terms used in the law to define the contours of offences as “open-ended, undefined and vague”, the court said: “Every expression used is nebulous in meaning. 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.”

The court pointed out that a penal law would be void on the grounds of vagueness if it failed to define the criminal offence with sufficient definiteness. “Ordinary people should be able to understand what conduct is prohibited and what is permitted. Also, those who administer the law must know what offence has been committed so that arbitrary and discriminatory enforcement of the law does not take place,” the court said.

SC rejects Centre’s plea

Striking down Section 66A of the Information Technology Act as unconstitutional, the Supreme Court on Tuesday rejected the Centre’s plea that it was committed to free speech and would ensure that the provision was administered in a reasonable manner.

“If Section 66A is otherwise invalid, it cannot be saved by an assurance from the learned Additional Solicitor-General that it will be administered in a reasonable manner. 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 govt.,” the court said.