On March 24, 2015, the Hon’ble Supreme Court of India (the “SC”) pronounced its judgment on constitutional validity of Sections 66A, 69A and 79 of the Information Technology Act, 2000 (the “IT Act”) and the Information Technology (Intermediary Guidelines) Rules, 2011 (the “Intermediary Rules”).
The SC declared Section 66A of the IT Act to be unconstitutional on the grounds of being violative of Article 19(1)(a) of the Constitution of India (the “Constitution”) which guarantees a fundamental right to freedom of speech and expression to all citizens of India.
Primarily, this matter culminated from the arrest of two women in Mumbai, India, over certain posts on the online social networking website, Facebook. Consequently, several writ petitions were filed with the SC challenging the constitutional validity of the above-mentioned provisions of the IT Act and the Intermediary Rules.
Findings on constitutional validity of Section 66A of the IT Act
Section 66A of the IT Act imposes an imprisonment of three (3) years and a fine on any person sending by means of a computer resource or a communication device: (a) any information that is grossly offensive or has menacing character; (b) any information which is known to be false, 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 communication device; or (c) any electronic mail or electronic mail message causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages.
The petitioners in this matter had challenged the constitutionality of Section 66A of the IT Act on the grounds of Article 19(1)(a) read with Article 19(2) of the Constitution.
The key principles on the basis of which the SC concluded that Section 66A of the IT Act is unconstitutional are as follows:
- Mere discussion or advocacy of any particular matter is fundamental to the right to freedom of speech and expression, unless such discussion or advocacy leads to incitement. Section 66A of the IT Act does not distinguish between a mere discussion/ advocacy and incitement.
- Section 66A of the IT Act casts a wide net on any and all information that is sent or disseminated over the internet.
- The offence created under Section 66A of the IT Act does not have any proximate connection to the eight (8) subject matters specified under Article 19(2) of the Constitution which permits promulgation of laws imposing reasonable restrictions on the right to freedom of speech and expression, i.e., to maintain the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
- The terms used in Section 66A of the IT Act have not been defined either under the definitions chapter of the IT Act nor is there a general statement under the IT Act indicating that the terms not defined under the IT Act have the meaning under the Indian Penal Code, 1860.
- No clear benchmarks or standards are specified and hence leads to Section 66A of the IT Act being vague.
- The Additional Solicitor General of India, representing the defendant, i.e., the Union of India mentioned in this matter that the government does not and will not use Section 66A of the IT Act in a manner to defeat or take away the right granted under Article 19(1)(a) of the Constitution, however, the SC held that such an assurance from the present government may not bind the successor governments and that Section 66A of the IT Act should be adjudged on its own merits.
The SC by striking down Section 66A of the IT Act has re-affirmed the value and importance of the fundamental right to freedom of speech and expression.
We agree with the judgment passed by the SC as it upholds the fundamental right to speech and expression, whether through electronic means or otherwise, more so on the principle spelt out by the SC that mere dissemination of information without such information resulting in an actual injury, public disorder, endangering the security of the state will be valid and will not be held unconstitutional.