Here Today, Gone Tomorrow. Supreme Court strikes down Section 66A of the IT Act [Read the Judgment]

The Supreme Court today declared Section 66A of the Information Technology Act, 2000 as unconstitutional. The judgment was delivered by the Division Bench consisting of Justices J. Chelameswar and R.F. Nariman.The judgment, authored by Justice Nariman notes that the batch of petitions before the Court "raise very important and far-reaching questions relatable primarily to the fundamental right of freespeech and expression guaranteed by Article 19(1)(a) of theConstitution of India."Perusing the Section 66A and other provisions challenged in the petitions, the Apex Court notes the contentions made by the petitioners, it notes, "very basis of Section 66A- that it has given rise to new forms of crimes - is incorrect, andthat Sections 66B to 67C and various Sections of the IndianPenal Code (which will be referred to hereinafter) are goodenough to deal with all these crimes."Out of various grounds for the Constitutional challenge to the provision, the Counsel of the Petitioner submitted, "first and foremost Section 66A infringes the fundamentalright to free speech and expression and is not saved by any ofthe eight subjects covered in Article 19(2)." It was also submitted, "Section 66A suffers from the vice of vaguenessbecause unlike the offence created by Section 66 of the sameAct, none of the aforesaid terms are even attempted to bedefined and cannot be defined, the result being that innocentpersons are roped in as well as those who are not. Suchpersons are not told clearly on which side of the line they fall;and it would be open to the authorities to be as arbitrary andwhimsical as they like in booking such persons under the saidSection. In fact, a large number of innocent persons have beenbooked and many instances have been given in the form of anote to the Court."It was also contended by the petitioners, "their rights underArticles 14 and 21 are breached inasmuch there is nointelligible differentia between those who use the internet andthose who by words spoken or written use other mediums ofcommunication. To punish somebody because he uses a particular medium of communication is itself a discriminatoryobject and would fall foul of Article 14 in any case."Additional Solicitor General Tushar Mehta defended the constitutionality of Section 66A and submitted that legislature is in the best position to understand and appreciate the needs of the people. He also added, "Mere possibility of abuse of a provision cannot be a ground to declare a provision invalid. Loose language may have been used in Section 66A to dealwith novel methods of disturbing other people's rights by using the internet as a tool to do so. Further, vagueness is not aground to declare a statute unconstitutional if the statute is otherwise legislatively competent and non-arbitrary."The Supreme Court in its judgment also went through the number of judgments the parties to the case had relied upon. After the same, the judgment notes, "This leads us to a discussion of what is the content of theexpression "freedom of speech and expression". There arethree concepts which are fundamental in understanding thereach of this most basic of human rights. The first isdiscussion, the second is advocacy, and the third is incitement."The Supreme Court also noted the difference in law regarding free speech in the US and India, it said, "It is significant to notice first the differences between the US First Amendment and Article 19(1)(a) read with Article 19(2). The first important difference is the absoluteness of the U.S first Amendment – Congress shall make no law which abridges the freedom of speech. Second, whereas the U.S. First Amendment speaks of freedom of speech and of the press, without any reference to "expression", Article 19(1)(a) speaks of freedom of speech and expression without any reference to"the press". Third, under the US Constitution, speech may be abridged, whereas under our Constitution, reasonable restrictions may be imposed. Fourth, under our Constitution such restrictions have to be in the interest of eight designated subject matters - that is any law seeking to impose a restriction on the freedom of speech can only pass muster if it is proximately related to any of the eight subject matters set out in Article 19(2)."The Supreme Court then expressed its opinion regarding each difference. It said, "In so far as the first apparent difference is concerned, the U.S. Supreme Court has never given literal effect to the declaration that Congress shall make no law abridging the freedom of speech." It added, "So far as the second apparent difference is concerned,the American Supreme Court has included "expression" as part of freedom of speech and this Court has included "the press" as being covered under Article 19(1)(a), so that, as a matter of judicial interpretation, both the US and India protect thefreedom of speech and ...

Here Today, Gone Tomorrow. Supreme Court strikes down Section 66A of the IT Act [Read the Judgment]

Gaurav Pathak

Tags