Section 66A of the Information Technology Act 2000 struck down as unconstitutional #indianlaws

A set of writ petitions came up before the Apex Court raising an important and far-reaching questions relatable primarily to the fundamental right of free speech and expression guaranteed by Article 19(1)(a) of the Constitution of India. The immediate issue of concern was whether Section 66A of the Information Technology Act of 2000 (Act), which came into force by the Amendment Act of 2009 with effect from 27.10.2009, is unconstitutional. The section provides for the punishment for sending offensive messages through communication service, etc.

The Court held while scrapping Section 66A of the Act held as under:

(a)    Section 66A of the Information Technology Act, 2000 to be 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 held to be constitutionally valid.

(c)    Section 79 held to be 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). 

Expressions used in 66A were held to be completely open-ended and undefined. 

While dealing with Section 66A, the Act Court also took note of Section 2(v) of the Act defining information, which as observed is an inclusive one and it not referring to what the content of information can be but talking only about the medium through which such information is disseminated. It was held that it is correct in saying that the public’s right to know is directly affected by Section 66A. Information of all kinds have been roped in which may have scientific, literary or artistic value, or relating to current events or which obscene or seditious. Simply because such information may be causing annoyance or inconvenience to some, it does not lead to an offence being made out.

Further, there is no distinction made between mere discussion or advocacy of a particular point of view which may be annoying or inconvenient or grossly offensive to some and incitement by which such words lead to an imminent causal connection with public disorder, security of State etc. The provision clearly affects the freedom of speech and expression. It is not open to the State to curtail freedom of speech to promote the general public interest.

Section 66A 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. Such message need not have any potential which could disturb the community at large. The nexus between the message and action that may be taken based on the message is conspicuously absent – there is no ingredient in this offence of inciting anybody to do anything which a reasonable man would then say would have the tendency of being an immediate threat to public safety or tranquility. The Section thus has no proximate relationship to public order whatsoever. 

The Court held that Information that may be grossly offensive or which causes annoyance or inconvenience are undefined terms which take into the net a very large amount of protected and innocent speech. A person may discuss or even advocate by means of writing disseminated over the internet information that may be a view or point of view pertaining to governmental, literary, scientific or other matters which may be unpalatable to certain sections of society. It is obvious that an expression of a view on any matter may cause annoyance, inconvenience or may be grossly offensive to some. Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.

Again, Section 66A does not concern itself with injury to reputation. Something may be grossly offensive and may annoy or be inconvenient to somebody without at all affecting his reputation. The provision is not aimed at defamatory statements at all. Equally, Section 66A has no proximate connection with incitement to commit an offence. Firstly, the information disseminated over the internet need not be information which “incites” anybody at all. Written words may be sent that may be purely in the realm of “discussion” or “advocacy” of a “particular point of view”. The mere causing of annoyance, inconvenience, danger etc., or being grossly offensive or having a menacing character are not offences under the Penal Code at all. They may be ingredients of certain offences under the Penal Code but are not offences in themselves. 

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), was accordingly declared as unconstitutional.

[Shreya Singhal vs. Union of India]
(SC, 24.03.2015)
(W.P. (Criminal) No.167 of 2012
Alongwith other connected Petitions)