The Supreme Court scrapped on Tuesday a controversial cyber law that gave police sweeping powers to arrest anyone for posting “annoying” or “offensive” comments online, saying it curtailed a citizen’s constitutional right to freedom of speech and expression.
Free speech campaigners hailed the ruling on Section 66A of the Information Technology Act, which made sending such messages a crime punishable by up to three years in prison, saying the verdict was a victory for the world’s fastest growing internet market.
“We hold the section unconstitutional on the grounds that it takes within its sweep protected speech that is innocent in nature. It is liable to have a chilling effect on free speech and, therefore, has to be struck down,” the court said.
A bench of Justice J Chelameswar and Justice Rohinton F Nariman held the public’s right to know was directly affected by the law, which was cast so wide that it covered any opinion on any subject. “Such is the reach of the section that the chilling effect on free speech is total,” they said.
Posting defamatory and inflammatory content online, however, is still punishable under the Indian Penal Code. The court said procedural safeguards in the criminal procedure code already exist to ensure they are not misused.
The landmark verdict means anyone arrested under the controversial provision since its introduction in 2009 would now be relieved as all cases under the section would be dropped.
The top court held Section 66A was vague and didn’t explain what content should be construed as “annoying”, “inconvenient”, “grossly offensive” or of a “menacing character”, making it open to abuse.
“The section made no distinction 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 and security of the state,” the judgment said.
The bench also referred to two judgments of separate UK courts which reached different conclusions as to whether the material in question was offensive or grossly offensive.
"When judicially trained minds can reach on different conclusions while going through the same content, then how is it possible for law enforcement agency and others to decide as to what is offensive and what is grossly offensive,” the bench said, adding, "What may be offensive to a person may not be offensive to the other".
The bench also rejected the assurance given by the NDA government during the hearing that certain procedures may be laid down to ensure that the law in question is not abused.
"Governments come and go but Section 66A will remain forever," the bench said, adding the present government cannot give an undertaking about its successor that they will not abuse the same.
The judges, however, did not scrap two other provisions of the IT Act -- - sections 69A and 79 of the IT Act -- that empower the government to block online content, but made a court order compulsory for any third party to ask an intermediary – such as Google or Facebook – to take it down.
Section 69A provides power to issue directions to block public access of any information through any computer resource and 79 provides for exemption from liability of intermediary in certain cases.
The victims of the so-called “black law” cheered the judgment. “It is a big relief. My daughter was accused of posting offensive remarks and was arrested. I don’t think expressing one’s views is a crime,” said Farooq Dhada, father of one of the two girls arrested for a 2012 Facebook post questioning the shutdown of Mumbai after the death of Shiv Sena supremo Bal Thackeray.
"I never scolded her for (the post) and supported her always as she had done nothing wrong. We are happy by the verdict and all credit must go to my daughter," Dhada added.
The case triggered the public interest litigation in the SC, filed by Delhi-based law student Shreya Singhal, who welcomed the ruling as a big victory.
“I could have been one of them if I had posted a similar opinion. This was being misused by every government,” she said.
Bloggers, activists and writers joined Singhal in the case as outrage spread over a string of arrests under the section, most often involving criticism of political leaders.
The NDA government defended the UPA-era law in court, saying it would administer the law reasonably. The judges, however, rejected the argument. “Governments may come and governments may go but section 66A goes forever. An assurance from the present government, if even carried out faithfully, would not bind any successor government,” the court said.
Reacting to the ruling, Union information technology minister Ravi Shankar Prasad said the NDA government respected freedom of speech and expression and wasn’t in favour of curtailing communication of honest dissent or criticism on social media.
The Congress also welcomed the verdict with party leader and senior advocate P Chidambaram saying the section was poorly drafted and vulnerable. “There could be a case of misuse of freedom of speech. In such cases, ordinary laws should apply. Section 66A was not the answer,” he said.