Supreme Court in a landmark judgement struck down section 66A of the Information Technology Act, 2000 which provided provisions for the arrest of those who posted allegedly offensive content on the internet upholding freedom of expression. Section 66A defines the punishment for sending “offensive” messages through a computer or any other communication device like a mobile phone or tablet and a conviction of it can fetch a maximum three years of jail and a fine.
Over the last couple of years there has been many cases in which police has arrested the broadcasting of any information through a computer resource or a communication device, which was “grossly offensive” or “menacing” in character, or which, among other things as much as cause “annoyance,” “inconvenience,” or “obstruction.” In a judgment authored by Justice R.F.Nariman, on behalf of a bench comprising himself and Justice J. Chelameswar, the Court has now declared that Section 66A is not only vague and arbitrary, but that it also “disproportionately invades the right of free speech.”
FACTS OF THE CASE
Two girls-Shaheen Dhada and Rinu Srinivasan, were arrested by the Mumbai police in 2012 for expressing their displeasure at a bandh called in the wake of Shiv Sena chief Bal Thackery’s death. The women posted their comments on the Facebook. The arrested women were released later on and it was decided to close the criminal cases against them yet the arrests attracted widespread public protest. It was felt that the police has misused its power by invoking Section 66A inter alia contending that it violates the freedom of speech and expression. In 2013, the apex court had come out with an advisory under which a person cannot be arrested without the police receiving permission from senior officers. The apex court judgment came on a batch of petitions challenging the constitutional validity of Section 66A of the IT Act on the grounds of its vague and ambiguous and was being misused by the law enforcing authorities.
The verdict in Shreya Singhal is immensely important in the Supreme Court’s history for many reasons. In a rare instance, Supreme Court has adopted the extreme step of declaring a censorship law passed by Parliament as altogether illegitimate. The Judgment has increased the scope of the right available to us to express ourselves freely, and the limited space given to the state in restraining this freedom in only the most exceptional of circumstances. Justice Nariman has highlighted, the liberty of thought and expression is not merely an aspirational ideal. It is also “a cardinal value that is of paramount significance under our constitutional scheme.”
NO LEGITIMATE DEFENSES
The Supreme Court agreed with the petitioners that none of the grounds contained in Article 19(2) were capable of being invoked as legitimate defenses to the validity of Section 66A of the IT Act. “Any law seeking to impose a restriction on the freedom of speech can only pass muster,” wrote Justice Nariman, “if it is proximately related to any of the eight subject matters set out in Article 19(2).”
There were two tests that were put to the Section 66A- clear and present danger and the probability of inciting hatred. Section 66A has failed those tests because the posts that people were jailed for did not incite public hatred or disrupted law and order.
In quashing Section 66A, in Shreya Singhal, the Supreme Court has not only given afresh lease of life to free speech in India, but has also performed its role as a constitutional court for Indians. The Court has provided the jurisprudence of free speech with an enhanced and rare clarity. Various provisions of IPC and Sections 66B and 67C of the IT Act are good enough to deal with all these crimes and it is incorrect to say that Section 66A has given rise to new forms of crimes.