Massive win for free speech online: India's Supreme Court strikes down #Sec66A

Governments come and go, but the law persists: SC said

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The News Minute| March 24, 2015 | 10.45 pm IST Striking down any attempt at curbing the freedom of expression online, the Supreme Court today ruled that Section 66A of the IT Act is "unconstitutional". In a strongly-worded judgment, the court said that the provision could not be saved if even if the government says it would not abuse the law Medianama reported. The landmark judgment will have wide-ranging effects on the freedom of speech in India, as the Supreme Court said that Section 66A of the IT Act was inherently "unconstitutional" as it was vague. The government had argued that the provision could not be struck down just because the definition of what constituted "grossly offensive" content was ambiguous. The Times of India reported that Additional Solicitor-General Tushar Mehta said: "There are institutions which are working in other media whether it is paper, television or cinema. There is an institutional approach and there are checks like pre-censorship for TV and films. But in internet there is individual approach and there is no checks and balances or license." Rejecting this argument, a bench of justices Chelameswar and Rohinton Fali Nariman said that the right to freedom of expression had three components - discussion, advocacy and incitement. Reading out the judgment, Justice Nariman observed that the the section does not fall within the ambit of the reasonable restrictions specified in Article 19 (2). He said that it was only when discussion and advocacy reach the level of incitement can the reasonable restrictions in Clause 2 of Article 19 be invoked. Justice Nariman said: "Governments come and governments go, the law persists. And the law must be judged on its own merit. 66A is invalid and it cannot be saved even if the government says it wont abuse the law." The reasonable restrictions included under Article 19 of the Constitution are: security of the State, friendly relations with foreign States, public order, decency and morality, contempt of court, defamation, incitement to an offence, and the sovereignty and integrity of India. Read- When the Supreme Court quoted Shakespeare to strike down #Sec66A Shreya Singhal had approached the Supreme Court in 2012 after Maharashtra police arrested Shaheen Dhada and Rinu Srinivasan of Thane for posting comments on Facebook that were allegedly derogatory towards Shiv Sena supremo Bal Thackeray. In its remarks, the court said that the Section did not meet the test of clear and present danger, and although it was intended to maintain public order, the provision fails to do so. Stating Section 66A affected the right of the public to know. Read: Not just #Sec66A: What the SC said on other sections that curb free speech online Since the IT Act 2000 was passed it has been criticised as a draconian law that had the potential to be widely misused to curb the right to free speech and expression. Amendments to the Act in 2008 made the law more controversial, resulting in 10 petitions over the years in the Supreme Court, challenging various sections of the law including on Constitutional grounds. The verdict of the Supreme Court has wide ranging ramifications for all internet users in the country. The main sections that are being challenged are Sections 66A (criminal liability for offensive, annoying or inconveniencing online communications), 67A (obscene content), 69A (website-blocking) and 79 (intermediary liability). Read- While we cribbed about Section 66A, here's a list of those who were actually affected Petitions were filed by multiple people and NGOs who strongly contested that certain sections of the Information and Technology Act 2000 interfered with free speech. Some of the petitioners included PUCL, Member of Parliament Rajeev Chandrasekhar, Taslima Nasreen, Mouthshut.com amongst others. The most contested was Section 66A of the Information and Technology Act 2000 gave the police, powers to arrest those who posted objectionable content online and could also result in a jail term. The draconian act demands punishment for sending offensive messages through a communication service. It reads - Any person who sends, by means of a computer resource or a communication device -(a) any information that is grossly offensive or has menacing character; or(b) any information which he knows to be false, but 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,(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,shall be punishable with imprisonment for a term which may extend to three years and with fine. The lawyers of the petitioners argued that the definition of provision of Section 66A is vague and leads to abuse. They also argued that even genuine comments criticising a person, and caricatures, are treated as offence, and people are harassed. Singhal had filed the petition after the two girls had objected to a strike called by Shiv Sena following the death of party founder Bal Thackeray. Speaking to the media after the ruling, Singhal said that "No one should fear putting up (something on the internet)." Using the definition of the provision, Singhal said: "The section is grossly offensive to our rights". It was also alleged that the local police were misusing the laws at the behest of politicians. The Union home ministry had also issued a directive to all state governments that arrests under Section 66 A can only be made with the approval of senior police officers. Recent instances of 66A reported by The News Minute: SC hauls up UP government for arresting boy for Facebook comments on Azam Khan Police action against two website editors for reports against Kochi Mayor, no case on mainstream media Sedition charges over a Facebook post in Kerala: Justified or going overboard? Tweet Follow @thenewsminute

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