"Yea......"
That was my reaction after seeing the much awaited judgement on the constitutional validity of article 66A of Information Technology Act 2000. This article has been widely condemned for being draconian and curtailing freedom of expression given under article 19(1) of the constitution of India. Despite Supreme Court guidelines, the act was misused to harass citizen expressing their view online.
Thanks to Shreya Singhal for filing a PIL to save the freedom of expression from the abuse of this law.
"...Counsel for the petitioners argued that the language used in Section 66A is so vague that neither would an accused person be put on notice as to what exactly is the offence which has been committed nor would the authorities administering the Section be clear as to on which side of a clearly drawn line a particular communication will fall."
The full judgement can be found on judis :
SHREYA SINGHAL Vs. U.O.I. J. CHELAMESWAR, ROHINTON FALI NARIMAN 24/03/2015
The Hindu coverage of decision
After reading the complete judgement, I would like to highlight certain arguments put in the judgement.
The major arguments related to the case were as following:
1. A law can not be help invalid mere for potential abuse:
Answer: Similarly a law can not be held valid for mere assurance that it wont be misused.
"...The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity. The converse must also follow that a statute which is otherwise invalid as being unreasonable cannot be saved by its being administered in a reasonable manner."
2. Vagueness:
Many sections of the IPC are as vaguely formed as in section 66A (e.g. annoyance, offensive etc.)
Answer: These terms are used in IPC as part that may constitute a crime but 66A considers these actions as crime in itself.
Any vagueness in law makes it arbitrary and leaves the policy matters in the hand of few low level functionaries to abuse it on their discretion. However, the challenge here is for constitutional validity.
"...Section 66A suffers from the vice of vagueness because unlike the offence created by Section 66 of the same Act, none of the aforesaid terms are even attempted to be defined and cannot be defined, the result being that innocent persons are roped in as well as those who are not.
....The enforcement of the said Section would really be an insidious form of censorship which impairs a core value contained in Article 19(1)(a). In addition, the said Section has a chilling effect on the freedom of speech and expression."
"...it is clear that Section 66A is unconstitutionally vague."
3.Public order:
"..The Section makes no distinction between mass dissemination and dissemination to one person. Further, the Section does not require that such message should have a clear tendency to disrupt public order."
"....that the offence would only be complete if the words complained of have a tendency of creating public disorder by violence. It was added that merely creating disaffection or creating feelings of enmity in certain people was not good enough or else it would violate the fundamental right of free
speech under Article 19(1)(a)."
4. Right to freedom of speech and expression can not be restricted on any ground other than those specified in article 19(2).
...As Section 66A severely curtails information that may be sent on the internet based on whether it is grossly offensive, annoying, inconvenient, etc. and being unrelated to any of the eight subject matters under Article 19(2) must, therefore, fall foul of Article 19(1)(a), and not being saved under Article 19(2), is declared as unconstitutional."
"...Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19(1)(g) and the social control permitted by clause (6) of article 19, it must be held to be wanting in that quality.”
The court gave many references to the judgments given by the US Supreme Court and other courts in the world and that of our own court's to emphasize how important the right to freedom of expression is for democracy and for the freedom per se, and how it must be saved with due diligence from any suppression.
However the Court accepted that Internet as a category of medium of communication different from news and print media due to its nature and speed. The section 69A for blocking certain websites is also maintained to be constitutionally valid.
Summary of judgement:
(a)Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2).
(b)Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid.
(c)Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material.
Similarly, the Information Technology “Intermediary Guidelines” Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment.
(d)Section 118(d) of the Kerala Police Act is struck down being violative of Article 19(1)(a) and not saved by Article 19(2)."
I am truly impressed by the court's judgement and the acumen shown by the learned judge while giving the judgement. This has made my belief in the judiciary and our democracy stronger. I am really proud my Supreme Court and our overall governance structure that has a system of checks and balances to correct its mistakes.
