In a landmark verdict, the Supreme Court on Tuesday fortified the right to freedom of speech and liberty by striking down as `unconstitutional' Section 66A of the Information Technology Act, which police had used indiscriminately to arrest persons for posting criticism of government and political leaders. “Section 66A is so widely cast 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,“ the court said.
Justices J Chelameswar and R F Nariman said the law was ambiguously worded, prone to misuse and, therefore, stretches far beyond the “reasonable restrictions“ criterion laid down under Article 19(2) of the Constitution.They brushed aside the government's promise not to misuse the law saying that what is unconstitutional should not be on the statute book at all.
Despite the SC judgment, citizens still need to be careful while posting comments on websites and social network sites as provisions similar to Section 66A exist in Indian Penal Code's Sections 153 and 505.
But the judgment could act as a deterrent against arrest. Heralding a red-letter day for internet and social networking site users, the bench, referring to as many as 20 judgments of the US Supreme Court, said Section 66A was vaguely worded, making it prone to misuse by police.
The restrictions on free speech through Section 66A was brought into force by the UPA government in 2009 by amending the I-T Act and defended in the apex court by the NDA government.
Writing the 123-page judgment , Justice Nariman said: “Section 66A purports to authorize the imposition of restrictions on the fundamental right contained in Article 19 (1)(a) [guaranteeing right to freedom of speech and expression] in language wide enough to cover restriction both within and without limits of constitutionally permissible legislative action.“ The court also struck down Section 118 of Kerala Police Act, which was similar to Section 66A. The SC refused to buy the NDA government's assurance that it would exercise restraint in invoking Section 66A of the IT Act. The bench said when the provision was unconstitutional, it could not be allowed to stay on the statute book. “If Section 66A is otherwise invalid, it cannot be saved by an assurance from the additional solicitor general that it will be administered in a reasonable manner. Governments may come and governments may go but Section 66A goes on forever. An assurance from the present government even if carried out faithfully would not bind any successor government,“ the court said.
“It cannot be overemphasized that when it comes to democracy , liberty of thought and expression is a cardinal value that is of paramount significance under our constitu tional scheme,“ said Justice Nariman. Law student Shreya Singhal had moved the SC challenging the constitutionality of Section 66A after the two Palghar girls were arrested for posts on a social network site criticizing a bandh on the day Bal Thackeray was cremated.
However, the SC upheld the constitutional validity of Section 69A which empowered authorities to issue directions for blocking any information through any computer if authorities felt it was necessary to do so in the interest of “sovereignty and integrity of India, defence of India, security of the state, friendly relation with other countries and disturb public order or incite an offence“. The court said it was upholding the provision as there was an elaborate procedure under the law to decide on blocking of websites and it demanded authorities to record in writing the reasons behind the move. The bench also watered down ISPs power under Section 79 to take down posts on mere request of others who find it offensive. It said posts could be taken down only on court orders.
“Otherwise it would be very difficult for intermediaries like Google, Facebook etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not,“ said Justices Chelameswar and Nariman.
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