It is almost as if we were fighting for basic civil rights all over again and won the battle. Just as we were all despairing about the state of public institutions and the threats to women and minorities from various cultural and political agendas, the Supreme Court has given us a rare moment of exultation. By declaring as unconstitutional Section 66A of the Information Technology Act the apex court has resolutely set in stone the freedom to express ourselves, without the fear of the State.
Section 66A was a badly drafted piece of legislation that should never have found a place in one of the world’s great democracies. It listed punishments for sending ‘offensive messages’ through the internet and reckoned that communicating any information ‘grossly offensive’ or one that inconvenienced and insulted constituted a criminal offence that was punishable by up to three years in prison. Contrary to governmental assurances the Act was grossly misused in practice. There were at least 10 high-profile cases, including the arrests of a cartoonist for lampooning Parliament, young girls for a Facebook post questioning the need for a Mumbai shutdown after Bal Thackeray’s death and a businessman for raising questions about the wealth of a politician. Justices Jasti Chelameshwar and Rohinton Nariman rightly concluded that ‘the law hit at the root of liberty and freedom’. They underlined that our Constitution provides for liberty of thought, expression and belief and ruled that Section 66A was ‘vague in its entirety’.
This unpopular legislation was endorsed by the political class, including the Congress and the BJP, which passed it without adequate discussion and continued to back it. Rather than creatively coming to terms with the challenges of balancing liberty and security in the age of the internet, they tried to institute an intimidatory regime that would through selective, exemplary use enforce compliance and self-censorship. The State regrettably did not demonstrate any elective affinity for liberty in the six years that this law was in place. In fact last month the additional solicitor general lamented to the court that the Internet had no checks and balances like pre-censorship for TV and films. Without endorsing blanket approaches, the court indicated that restrictions on freedom had to be justified in terms of incitement to an offence and public disorder, which Section 66A failed to. The verdict in some ways also points to the mobilising power of liberal intelligentsia in India. The campaign against Section 66A began with a petition by a young law student that drew in senior lawyers, civil liberties groups and journalists. We owe them all and Justices Chelameshwar and Nariman a debt of gratitude.